,3j3r 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


z 


THE    LAW   AND    THE    POOR 


THE    LAW   AND 
THE    POOR 


HIS    HONOUR   JUDGE 


EDWARD    ABBOTT    PARRY 

AUTHOR   OK    "  DOROTHY    OSIiORNE's    LETTERS,"    "  JUDGMENTS    IN    VACATION, 

"WHAT    THE  JUDGE  SAW,"    "THE   SCARLET    HERRING," 

"  KATAWAMPUS,"   ETC. 


"  Laws  grind  the  poor  and  rich  men  rule  the  law." 

Oliver  Goldsmith:  "The  Traveller." 


NEW     YORK 
DUTTON    AND    COMPANY 

681     FIFTH    AVENUE 
1914 


T 
)9I4 


c? 


To 

The  Man 

In  the  Street 

This    Volume    is 

Dedicated, 

In  the  pious  hope  that 

He  will  take  up  his  Job  and 

Do   IT. 


71. 
LAW 


CONTENTS 


INTRODUCTION        . 
REFERENCES  . 

I.  PAST   AND    PRESENT         .... 

II.  THE   ANCIENTS    AND    THE    DEBTOR   . 

III.  OF    IMPRISONMENT    FOR    DEBT    IN    ENGLAND 

IV.  HOW    THE    MACHINE    WORKS     . 
V.  WORKMEN'S    COMPENSATION    . 

VI.  BANKRUPTCY  .... 

VII.  DIVORCE         .... 

VIII.  FLAT-TRAPS    AND    THEIR    VICTIMS      . 

IX.  POVERTY    AND    PROCEDURE      . 

X.  CRIME   AND    PUNISHMENT 

XI.  THE    POLICE    COURT 

XII.  LANDLORD    AND    TENANT 

XIII.  THE  TWO  PUBLIC  HOUSES  :     I.  THE  ALEHOUSE 

XIV.  THE  TWO  PUBLIC  HOUSES  :    II.  THE  WORKHOUSE 
XV.       REMEDIES    OF   TO-DAY    . 
XVI.       REMEDIES    OF    TO-MORROW       . 

INDEX  ....... 


PACE 

ix 

XV 

I 
20 

36 
58 
76 

106 

125 
152 

172 

189 
213 
233 

2  ^_ 
271 

285 
299 

311 


Vll 


INTRODUCTION 

"  But,  say  what  you  like,  our  Queen  reigns  over  the  greatest 
nation  that  ever  existed." 

"  Which  nation  ?  "  asked  the  younger  stranger,  "  for  she 
reigns  over  two." 

The  stranger  paused  ;  Egremont  was  silent,  but  looked 
inquiringly. 

"  Yes,"  resumed  the  stranger  after  a  moment's  interval. 
"  Two  nations  ;  between  whom  there  is  no  intercourse  and  no 
sympathy  ;  who  are  as  ignorant  of  each  other's  habits,  thoughts, 
and  feelings,  as  if  they  were  dwellers  in  different  zones,  or 
inhabitants  of  different  planets  ;  who  are  formed  by  a  different 
breeding,  are  fed  by  a  different  food,  are  ordered  by  different 
manners,  and  are  not  governed  by  the  same  laws." 

"  You  speak  of ,"  said  Egremont,  hesitatingly. 

"  The  Rich  and  the  Poor." 

Benjamin  Disraeli  :  "  Sybil,  or  The  Two  Nations." 

The  rich  have  man}'  law  books  written  to  protect 
their  privileges,  but  the  poor,  who  are  the  greater 
nation,  have  but  few.  Not  that  I  should  like  to 
call  this  a  law  book,  for  two  reasons  :  firstly,  it 
would  not  be  true  ;  secondly,  if  it  were  true,  I  should 
not  mention  it,  as  I  want  people  to  read  it. 

You  cannot  read  law  books,  you  only  consult 
them.  A  law  book  seeks  to  set  out  the  law,  the 
whole  law,  and  nothing  but  the  law  on  the  subject 
of  which  it  treats.  There  are  many  books  on  Poor 
Law,  there  are  hundreds  of  volumes  about  the  Poor, 
and  many  more  about  the  Law,  but  the  Law  and  the 
Poor  is  a  virgin  subject. 

ix 


INTRODUCTION 

It  is  a  wonder  that  it  should  be  so  because  it  is 
far  more  practical  and  interesting  than  either  of 
its  component  parts. 

It  is  as  if  poetry  had  dealt  with  beans  or  with 
bacon  and  no  poet  had  hymned  the  more  beautiful 
associations  of  beans  and  bacon.  In  the  same  way 
the  Law  and  the  Poor  is  a  subject  worthy  of  treat- 
ment in  drama  or  poetry,  but  that  that  may  be 
successfully  done  someone  must  do  the  rough  spade 
work  of  digging  the  material  out  of  the  dirt  heaps 
in  which  it  lies,  and  presenting  it  in  a  more  or  less 
palatable  form.  When  this  has  been  done  the  poet 
or  the  politician  can  come  along  and  throw  the  crude 
metal  into  the  metres  of  sonnets  or  statutes  or  any 
form  of  glorious  letters  they  please. 

From  the  very  earliest  I  have  taken  a  keen  interest 
in  this  subject.  I  remember  well  when  I  was  a 
schoolboy  the  profound  impression  made  upon  me 
by  Samuel  Plimsoll's  agitation  to  rescue  merchant 
seamen  from  the  horrible  abuses  practised  by  a 
certain  class  of  shipowner.  My  father,  Serjeant 
Parry,  was  engaged  in  litigation  for  Plimsoll,  and 
I  heard  many  things  at  first  hand  of  that  great 
reformer's  hopes  and  disappointments. 

There  were  a  class  of  traders  known  as  "  ship 
knackers,"  who  bought  up  old  unseaworthy  vessels 
and  sent  them  to  sea  overloaded  and  over-insured. 
Plimsoll,  for  years,  devoted  himself  to  prevent  this 
wickedness.  There  was  the  usual  parliamentary 
indifference,  the  customary  palavering  and  pow- 
wowing in  committees  until,  after  six  or  seven  years 
of    constant    fighting,    the   public    conscience    was 

x 


INTRODUCTION 

awakened,  and,  in  1875,  Disraeli  produced  a 
Merchant  Shipping  Bill.  But  then,  as  now,  there 
was  no  parliamentary  time  for  legislation  dealing 
with  the  poor,  and  the  Bill  was  one  of  the  innocents 
to  be  sacrificed  at  the  annual  summer  massacre. 

This  would  have  been  the  end  of  all  hope  of 
reform  had  not  Samuel  Plimsoll,  in  a  fine  frenzy  of 
rage  and  disgust,  openly  charged  the  Government 
with  being  parties  to  the  system  which  sent  brave 
men  to  death  in  the  winter  seas  and  left  widows  and 
orphans  helpless  at  home,  "  in  order  that  a  few 
speculative  scoundrels,  in  whose  heart  there  is 
neither  the  love  of  God  nor  the  fear  of  God,  may 
make  unhallowed  gains." 

This  was  unparliamentary  enough,  but  it  was 
allowed  to  pass.  It  was  when  he  began  to  give  the 
names  of  foundered  ships  and  their  parliamentary 
owners  and,  in  his  own  words,  "  to  unmask  the 
villains  "  who  sent  poor  men  to  death  and  destruc- 
tion, that  he  was  promptly  called  to  order,  and, 
refusing  to  withdraw,  left  the  House. 

The  result  of  his  outburst  was  entirely  satisfactory. 
The  Government  were  obliged  to  bring  in  another 
Bill  and  to  pass  it  without  delay. 

Many  years  later  the  unauthorised  Radical 
programme  of  Mr.  Joseph  Chamberlain  aroused  my 
youthful  enthusiasm,  and  I  spent  much  of  my  then 
ample  leisure  as  a  missionary  in  that  cause. 

We  soon  lost  our  great  leader,  who  went  away  to 
champion  what  he  considered  greater  causes,  but 
he  was  one  of  the  first  English  statesmen  in  high 
places  to  make  his  main  programme  a  reform  of 

xi 


INTRODUCTION 

the  law  in  the  interests  of  the  poor,  and  he  left 
behind  him  mournful  but  earnest  disciples  who  have 
not  yet  found  such  another  leader.  The  Workmen's 
Compensation  Act  will  always,  I  think,  be  regarded 
as  one  of  his  greatest  achievements,  and  mauled  and 
mangled  as  it  has  been  in  the  Law  Courts  it  remains 
the  most  substantial  benefit  that  the  poor  have 
received  from  the  Legislature  in  my  lifetime. 

Twenty  years'  service  in  urban  County  Courts  has 
naturally  given  me  some  insight  into  the  way  in 
which  the  law  treats  the  poor  and  the  real  wants  of 
the  latter.  I  agree  that  such  a  book  as  this  would 
be  better  written  by  one  who  had  actual  experience 
of  the  life  of  the  poor,  rather  than  the  official 
hearsay  experience  which  is  all  that  I  can  claim  to 
have  had. 

I  think  the  great  want  of  labour  to-day  is  an 
Attorney-General,  a  man  who  having  graduated  in 
the  workshop  comes  to  the  study  and  practice  of 
the  law  with  a  working  man's  knowledge  and  ideals, 
and  gaining  a  lawyer's  power  of  expressing  his 
wants  in  legal  accents,  raises  his  voice  to  demand 
those  new  laws  that  the  poor  are  so  patiently 
awaiting. 

If  there  be  such  a  one  on  his  way  and  this  volume 
is  of  any  small  service  to  him,  it  will  have  more 
than  fulfilled  its  purpose. 

Originating  in  a  series  of  essays  published  in  the 
Sunday  Chronicle,  it  has  grown  into  a  more  ambitious 
project,  and  is  now,  I  trust,  a  fairly  complete 
text-book  of  the  law  as  it  ought  not  to  be  in  relation 
to  the  poor. 

xii 


INTRODUCTION 

In  my  endeavour  to  please  the  taste  of  the  friend 
to  whom  I  have  dedicated  this  book  I  have  dis- 
pensed with  all  footnotes,  but  I  have  added  an 
appendix  of  references  in  case  there  may  be  any 
who  might  wish  to  test  the  accuracy  of  statements 
in  its  pages. 

"  Thus,"  as  my  Lord  Coke  says,  "  requesting 
you  to  weigh  these  my  labours  in  the  even  balance 
of  your  indifferent  judgment  I  submit  them  to  your 
censure  and  take  my  leave." 

EDWARD    A.   PARRY. 

Sevenoaks, 

1914. 


Xlll 


PAGE 

LINE 

xi 

II 

xiii 

7 

I 

3 

4 

20 

REFERENCES 

The  number  of  the  page  and  the  number  of  the  line  counting 
from  the  top  are  given  in  the  left-hand  column. 

INTRODUCTION 

Hansard.     1875.     Vol.  225,  col.  1823. 
Coke's  "  Institutes."     I.     "To  the  Reader." 

CHAPTER    I 

Job  xiii.  5. 

"  The  Compleat  Constable.  Directing  all  Con- 
stables, Headboroughs,  Tithing  men,  Church- 
wardens, Overseers  of  the  Poor,  Surveyors  of 
the  Highways  and  Scavengers  in  the  Duty 
of  their  several  Offices,  according  to  the 
Power  allowed  them  by  the  Laws  and  the 
Statutes."  3rd  edition.  London.  Printed 
for  Tho.  Bever  at  the  Hand  and  Star,  near 
Temple  Bar.     1708. 

8  16         "  Shakespeare's   Europe.      Unpublished   chap- 

ters of  Fynes  Moryson's  Itinerary,  being  a 
survey  of  the  condition  of  Europe  at  the  end 
of  the  sixteenth  century.     1903."     At  p.  67. 

9  24         Smollett.  "  Roderick  Random."  Chap.  XXIII. 

12  6         The  Trial  of  Richard  Weston  at  the  Guildhall 

of  London  for  the  Murder  of  Sir  Thomas 
Overbury,  19th  October,  13  James  1st, 
a.d.  1615.     Howell's  "  State  Trials,"  II.,  914. 

13  21         Boswell's     "  Life     of     Johnson."      Edited    bv 

Birkbeck  Hill.     II.  130. 

14  29         Boswell's  "  Life  of  Johnson."     IV.  1S8. 

17         8         Manchester  Guardian,  Saturday,  January  24th, 
1824. 

XV 


PACE 

LINE 

22 

6 

28 

6 

32 

20 

34 

7 

REFERENCES 

CHAPTER   II 

2  Kings  iv.  1 — 7. 

Grote's  "  History  of  Greece."  Part  II.,  C.  II. 
Hunter's  "  Roman  Law."  3rd  edition.  P.  18. 
Fynes  Moryson.     "  Shakespeare's  Europe." 

CHAPTER   III 

Imprisonment  for  Debt. — The  main  autho- 
rities for  the  history  of  imprisonment  for 
debt  are  the  reports  of  the  three  com- 
missions. 

1840.  Report  of  Commission  on  the  Present 
State  of  the  Laws  respecting  Bankrupts  and 
Insolvent  Debtors. 

1893.  Report  from  the  Select  Committee  on 
the  Debtors  Act  with  Minutes  of  Evidence. 

1909.  Report  on  Select  Committee  on  Debtors 
(Imprisonment)  with  Minutes  of  Evidence. 

The  Hansard  Reports  of  the  debates  over  the 
Bills  of  1837,  1844,  and  1869,  contain  many 
clear  statements  of  the  argument  for,  and 
against,  abolition. 
37  17  "  The  Law  of  Executions,  to  which  are  added  the 
History  and  Practice  of  the  Court  of  King's 
Bench."  By  the  late  Lord  Chief  Baron 
Gilbert. 

42  7         Smollett.     "  Roderick  Random."     Chap.  LXI. 

43  1         For  the  story  of  the  Clerkenwell  Spinster  and 

the  Debtor,  see  Sir  Walter  Besant's  "  London 
in  the  Eighteenth  Century,"  Chap.  V., 
"  Debtors'  Prisons,"  at  p.  562.  This  volume 
contains  excellent  accounts  of  the  law  and 
the  poor  in  the  eighteenth  century. 

45  8  December  5th,  1837.  Lord  Cottenham  intro- 
duced Bill  to  abolish  arrest  on  mesne  process. 
1  &  2  Vict.  c.  no. 

45  30  Thackeray.  "  The  Virginians."  Vol.  I. 
Chap.  XLV. 

xvi 


PAGE 

LINE 

46 

18 

48 

2 

48 

18 

REFERENCES 

Duke    de    Cadaval's    case.      Hansard.      1837. 

Vol.  39,  p.  593- 
J.   B.    Atlay.     "  The   Victorian   Chancellors." 

I.,  406. 
Lord    Brougham's   speech.      Hansard.      1837. 
Vol.  39,  p.  574- 
49       15         Lord    Brougham's   speech.      Hansard.      1844. 

Vol.  75,  p.   1 174. 
51         6         See  Judgment  of  Sir  George  Jessel,  M.R.,  in 
M arris  v.  Ingram,  (1879)   Law  Reports,  13 
Chancery  Division,  p.  341. 
55         6         Sir  Robert  Collier's  speech.     Hansard.     1869. 
Vol.   197,  p.  421. 

CHAPTER   IV 

65         5         "Debtors'      Imprisonment      Report,       1909-" 

Appendix  19,  at  p.  371. 
70       26         Basil  Montagu.     "  Opinions  of  Paley  Burke  and 

Dr.  Johnson  on  Imprisonment  for  Debt." 
75         5         Jeremy  Taylor.     "  A  Prayer  to  be  said  by  all 

Debtors,  and  all  Persons  obliged  whether  by 

Crime    or    Contract."     "  Holy    Living    and 

Dying." 

CHAPTER   V 

There  are  many  books  on  the  Workmen's  Com- 
pensation Act.  That  by  Mr.  Adshead 
Elliott  is  as  clear  and  comprehensive  as  any. 
The  Hansard  Debates  on  the  Bills  of  1897 
and  190G  are  full  of  interest. 

81  12  John  Chipman  Gray.  "  Nature  and  Services 
of  Law."     Sections  222 — 224. 

83  13  The  Attorney-General  v.  The  Edison  Telephone 
Co.  of  London,  Ltd.,  (1880)  Law  Reports,  6 
Queen's  Bench  Division,  p.  244. 

86  5         Gilbert  E.  Roe.    "  Our  Judicial  Oligarchy." 

87  17         Mr.  Asquith's  speech  on  Employers'  Liability 

Bill.     Hansard.     1893.     Vol.  8,  p.  1948. 


xvn 


L.P. 


io8 

28 

109 

iG 

109 

18 

no 

11 

119 

30 

REFERENCES 

PAGE      LINE 

92  24  See  the  judgments  of  Lord  Halsbury  and  Lord 
Davey,  in  Lysons  v.  Andrew  Knowles,  (1901) 
Law  Reports,  Appeal  Cases,  p.  79. 

CHAPTER   VI 

Jeremiah  xxii.  13. 

See  "  The  Living  Wage,"  by  Philip  Snowden, 

M.P.,  for  a  sensible,  practical  statement  of 

the  Socialist  ideal. 
Psalms  xxxv.  10. 
Carlyle.     "  Chartism."     Chap.  I. 
Hansard.     1883.     Vol.  277,  p.  834. 

CHAPTER  VII 

The  chief  authority  for  this  chapter  is  "  The 
Report  of  the  Royal  Commission  on  Divorce 
and  Matrimonial  Causes,"  published  in  1912, 
cited  below  as  D.  C. 
125  13  Notes  on  the  Reformatio  Legum  Ecclesiasti- 
carum.  D.  C,  III.,  pp.  44 — 58.  Appendix 
II.,  p.  23. 
129  24  J.  B.  Atlay.  "  The  Victorian  Chancellors." 
II.,  71. 

Jane  and  Fred's  Case.     D.  C,  II.,  390. 

George  and  Mary's  Case.     D.  C,  II.,  390. 

Xote  by  Mrs.  Tennant.     D.  C.  Report,  169. 

Mr.  Justice  Bargrave  Deane's  evidence.     D.  C, 

L.  49- 
Alfred  and  Anna's  Case.     D.  C,  II.,  390. 
John  and  Catherine's  Case.     D.  C,  II.,  391. 
Norah's  Case.     D.  C,  II.,  391. 
Divorce    in    France.     M.    Mesnil's    evidence. 

D.  C,  III.,  485. 
Mr.  Dendy's  evidence.     D.  C,  I.,  133. 
German  Divorce.     Dr.  Carl  Neuhaus's  evidence. 

D.  C,  III.,  472. 
147     31         Scot's  Divorce.     Mr.  Lamier's  evidence.     D.  C, 

I.,  277. 

xviii 


133 

24 

134 

14 

136 

4 

137 

28 

138 

iG 

139 

9 

140 

25 

M3 

17 

146 

18 

M7 

29 

REFERENCES 

PAGE       LINE 

150      9         Selden's  "  Table  Talk."     LXXXIV. 
150     30        D.  C.  Report,  Part  IX.,  par.  50. 

CHAPTER   VIII 

153  18  Carlyle.  "  Latter  Day  Pamphlets."  "  Par- 
liament." 

164     28         Dickens.     "  Oliver  Twist."     Chap.  LI. 

169  8  Arthur  Hugh  Clough.  "  The  Latest  Deca- 
logue." 

CHAPTER   IX 

174  6        George    Eliot.      "  The    Mill    on    the    Floss." 

Book  II.,  Chap.  II. 

175  n  Lysons  v.  A  ndrew  Knoivles,  (190 1 )  Law  Reports, 

Appeal  Cases,  p.  79. 

178  15  Tomkin's  "  Law  Dictionary,"  sub  tit.  "  Bar- 
raster." 

180  1  (j  See  Lord  Sumner's  judgment  in  Dallimore  v. 
Williams  and  Jesson,  Times  Newspaper, 
Saturday,  March  28th,  1914. 

182  1         Swift.     "  Gulliver's  Travels."     "  A  Voyage  to 

the  Houyhnhnms." 

183  3         Crabbe.     "  The  Borough."     Letter  VI. 

187  24         As  to  French  Conciliation  Courts,  see  Poincare, 

"  How    France    is    Governed,"    Chap.    X., 
"  Justice." 

188  iS       Piers  Plowman.     "  The  Vision  of  the  Field  full 

of  Folk." 

CHAPTER   X 

190  4  Sydney  Smith.  "  Counsel  for  Prisoners." 
Edinburgh  Review,  1826. 

192  23         Bentham.     "  A  Treatise  on  Judicial  Evidence." 

1825.     Book  I.,  Chap.  II.,  p.  7. 

193  19         Thackeray.     "The    Case  of  Peytel."     "Paris 

Sketch  Book." 
IQ4       2         Dickens.    "Why?"     "Miscellaneous  Papers." 
II.,  101. 

xix 


REFERENCES 


PAGE 
195 

LINE 

22 

Hansard.     1898.     Vol.  54,  p.  1176. 

196 

4 

Hansard.     1898.     Vol.  56,  p.  990. 

196 

11 

See  division  list  on  second  reading.  Hansard. 
1898.     Vol.  56,  p.  1087. 

198 

7 

Hansard.     1907.     Vol.  174,  p.  282. 

198 

10 

Hansard.     1907.     Vol.  174,  p.  292. 

199 

5 

Boswell's  "  Life  of  Johnson."  Birkbeck  Hill's 
edition.     III.,  25. 

200 

6 

Fuller's  "  Church  History." 

20I 

30 

Howell's  "  State  Trials."     II.,  927. 

CHAPTER   XI 

215  4  "  Speech  of  Viscount  Haldane  to  the  American 
Bar  Association  at  Montreal  on  September 
ist,  1913."  Published  in  "  The  Conduct 
of  Life  and  Other  Addresses,  1914,"  p.  97- 

227  22  Sydney  Smith.  "  Cruel  Treatment  of  Untried 
Prisoners."     Edinburgh  Review,  1824. 

CHAPTER   XII 

As  to  Housing,  see  "  Report  of  Her  Majesty's 
Commissioners  for  Inquiring  into  the  Housing 
of  the  Working  Classes,  1885,"  and  "Report 
of  the  Joint  Select  Committee  of  the  House 
of  Lords  and  the  House  of  Commons,  1902." 
235  9  R.  v.  Foxby,  6  Modern  Reports,  pp.  11,  178,  213, 
239  and  311. 

Dickens.     "  Bleak  House."     Chap.  XVI. 

Charles  Kingsley.     "  Alton  Locke."     Chap.  II. 

Benjamin  Disraeli.  "  Sybil."  Book  II., 
Chap.  III. 

"  History  of  Housing  Reform."  Published  by 
the  National  Unionist  Association.     1913. 

'*  The  Land.  The  Report  of  the  Land  Enquiry 
Committee."     Vol.  II.,  p.  28. 

Carlyle.  "  Chartism."  Chap.  VIII.  "  New 
Eras." 

"  The  Republic  of  Plato."  Book  IV.  Trans- 
lated by  Da  vies  and  Vaughan. 

XX 


238 

4 

238 

32 

240 

1 

244 

10 

246 

1 

250 

2 

254 

21 

REFERENCES 
CHAPTER  XIII 

PACE      LINK 

255  26         Mr.  Balfour's  speech  on  licensing.     Hansard. 

1908.     Vol.  185,  p.  98. 

256  4         Licensing  Act,  1904,  §  4,  now  Licensing  Act, 

1910,  §  14. 
256     16         Hansard.     1904.     Vol.  133,  p.  742. 
258     21         Dickens.     "  Our    Mutual    Friend."     Book    I., 

Chap.  VI. 
265     19         "  Letters  and  Memories  of  Charles  Kingsley." 

I.,  270. 

CHAPTER   XIV 

272  15  "  Report  of  the  Royal  Commission  on  the  Poor 
Laws  and  Relief  of  Distress,  1909." 

274  24         Coke's   "  Institutes."     III.,   Chap.   40,  p.   103 

(note). 

275  16         Horn's  "  Mirror  of  Justices."     Selden  Society. 

Vol.    7,    Book   IV.,  Chap.   XVI.,   "Of    the 
Judgment  of  Homicide." 

276  2         Horn's  "  Mirror  of  Justices."     Book  I.,  "  Of 

Sins  Against  the  Holy  Peace." 

279  11         "Report  of  Royal  Commission  on  the  Poor 

Laws,  1834,"  p.  307. 

280  17         "Poor  Law  Report,  1909,"  p.  728. 

CHAPTER   XV 

285       1         2  Samuel  xv.  4. 

290     12         Walt  Whitman.     "  Song  of  Myself." 

292  14  "  Report  of  Select  Committee  of  the  House  of 
Lords  on  the  Debtors  Act."  William  John- 
son's evidence,  p.  164. 

294     12         Manitoba  Laws. 

CHAPTER   XVI 

299       2         Marcus  Aurelius.     "  Meditations."     Book  IV., 

par.  31. 
303       3         Rudyard     Kipling.      "  The     Five     Nations." 

"  Stellenbosh,"  p.  194. 

xxi 


THE  LAW  AND  THE  POOR 


CHAPTER   I 


PAST   AND    PRESENT 


In  a  word  we  may  gather  out  of  history  a  policy  no  less  wise 
than  eternal  ;    by  the  comparison  and  application  of  other  men's 
fore-passed  miseries  with  our  own  like  errors  and  ill-deservings. 
Sir  Walter   Raleigh  :    "  History   of  the  World." 
Oxford  edition.     Vol.  II.,  Preface  v.  and  vi. 

I  often  feel  that  if  that  excellent  patriarch  Job 
had  been  alive  he  would  have  sent  me  a  postcard 
indited,  "  O  that  ye  would  altogether  hold  your 
peace  !  and  it  should  be  your  wisdom."  I  have  an 
anonymous  friend  who  sends  me  frank  criticisms  of 
that  kind  on  postcards.  The  sentiments  are  the 
same  as  Job's  text,  but  the  language  is  fruitier. 
Nevertheless,  I  like  to  hear  from  him,  for  he  is  an 
attentive  reader  of  all  I  write.  But,  honestly, 
although  I  was  always  sorry  for  Job  and  glad  when 
he  came  into  his  camels  and  donkeys  in  the  last 
chapter,  yet  I  never  sympathised  with  his  attitude 
of  taking  his  troubles  lying  down.  After  all,  if  one 
has  gained  a  little  practical  experience  of  the  law  and 

L.P.  I  B 


THE   LAW  AND  THE   POOR 

the  poor  by  living  and  working  with  them  for  twenty 
years  it  seems  a  pity  to  take  it  with  you  across  the 
ferry  into  the  silence  merely  because  you  have  a 
bashful  and  retiring  disposition.  It  is  right,  of 
course,  to  give  your  views  and  services  to  Select 
Commissions  and  the  like, — but  that  is  no  better 
than  hiding  a  lump  of  gold  in  a  hole  in  the  ground. 
The  wiser  plan  is  to  try  and  tell  the  law-makers  of 
the  future — the  men  in  the  street — what  is  wrong 
with  the  machine,  so  that  when  they  take  it  over,  as 
they  must  do  some  day,  they  will  not  scrap  it  in 
mere  despair,  but  tune  it  up  to  a  faster  and  nobler 
rhythm.  Job,  great,  good,  patient  soul  that  he  was, 
had  his  sour  moments — a  medical  friend  of  mine 
believes  that  he  had  a  liver, — I  am  sorry  not  to  take 
the  patriarch's  advice,  but  I  do  not  see  my  way  to 
hold  my  peace  about  the  law  and  the  poor,  and  that 
is  why  I  propose  to  try  and  point  out  how  and  why 
the  law  as  a  system  is  hard  on  the  poor,  and  wherein 
the  governors  and  great  ones  of  the  earth  may  further 
temper  the  wind  to  the  shorn  lamb.  I  myself  do  not 
expect  to  enter  into  the  promised  land  of  legal 
reform,  but  I  am  as  sure  that  the  younger  generation 
will  see  it,  as  I  am  sure  that  they  will  see  the  rising 
sun  if  they  ever  get  up  early  enough.  The  man  at 
the  door  of  the  booth  who  beats  the  drum  and  calls 
out  to  the  young  folk  in  the  fair  to  walk  up  and  see 
the  show  plays  a  helpful  part,  though  the  old  gentle- 
man knows  that  he  is  doomed  to  stand  outside  and 
never  make  one  of  the  audience.  Moses  was  like  that, 
but  he  did  useful  work  in  booming  the  promised  land. 
An  eminent  socialist  complained  to  me  with  tears 

2 


PAST   AND   PRESENT 

in  his  eyes  that  nothing  was  being  done  for  the  poor. 
I  do  not  agree.  Not  enough,  certainly,  but  some- 
thing, and  every  day  more  and  more.  The  world  is 
a  slow  world,  and  Nature,  like  all  such  artisans,  does 
her  building  and  painting  and  decorating  with 
exasperating  deliberation.  Geology  is  slower  than 
the  South  Eastern  Railway.  But  no  doubt  Provi- 
dence intended  each  of  them  to  go  at  the  pace  they 
do  for  our  good.  And  it  is  impious  to  grumble. 
Nevertheless,  if  I  were  a  sculptor  called  upon  to 
design  a  symbolic  statue  of  Nature,  I  should  model 
a  plumber.  Slow,  hesitating,  occasionally  mixing 
the  taps  and  flooding  the  world's  bathroom  or 
exploding  the  gas  mains  in  the  cellars  of  the  earth, 
but  in  the  end  doing  the  job  somehow — such  is  the 
way  of  Nature.  You  cannot  cinematograph  the 
growth  of  the  world  or  its  rocks  and  trees  and  human 
beings — to  study  Nature  you  want  long  life  and  a 
microscope.  And  the  only  way  to  make  out  whether 
the  tide  is  coming  in  or  out  is  to  place  a  mark  upon 
the  shore  and  wait  and  see.  It  is  the  same  if  you 
are  travelling  an  unknown  road — you  measure  your 
progress  by  the  milestones.  In  this  matter  of  the 
law  and  the  poor,  if  we  want  to  know  where  we  are 
to-day  and  where  we  are  likely  to  be  three  hundred 
years  hence,  the  only  sane  way  to  make  the  experi- 
ment is  to  go  back  to  what  we  know  of  things  in  the 
past,  and,  by  measuring  the  progress  made  in  bygone 
centuries,  take  heart  for  the  morrow.  That  is  what 
Sir  Walter  Raleigh  meant  when  he  told  us  how  to 
gather  a  sane  policy  for  to-day  out  of  the  blunders 
and  troubles  of  yesterday. 

3  B2 


THE   LAW  AND  THE  POOR 

As  I  grope  my  way  back  along  the  main  road  of 
the  history  of  the  law  into  the  dark  ages  I  seem  to 
find  the  milestones  of  reform  set  at  longer  and  longer 
intervals.  This  puts  me  in  good  heart  for  the  happy 
youths  whose  lot  it  will  be  to  set  their  faces  towards 
the  morning  breezes  of  the  future.  Their  milestones 
will  come  at  shorter  intervals  every  day,  until  the 
burden  of  the  law  drops  from  the  shoulders  of  the 
poor  at  the  wicket  gate. 

There  is  no  greater  folly  than  to  sing  the  praises  of 
the  good  old  days.  Anyhow,  the  law  had  no  good  old 
days  for  the  poor.  Stroll  down  to  the  dockyards 
with  Samuel  Pepys  ;  take  a  walk  down  Fleet  Street 
with  Dr.  Johnson  ;  or,  even  as  late  as  the  days  of 
Charles  Dickens,  go  round  the  parish  with  Mr. 
Bumble.  You  will  learn  in  this  way  better  than  in 
any  other  how  the  law  has  treated  the  poor  in  the 
good  old  days.  I  have  a  quaint  little  volume 
written  for  the  Dogberries  of  the  early  eighteenth 
century  called  "  The  Compleat  Constable."  It  is 
amazing  to  read  of  the  tyranny  of  the  law  towards 
the  poor  and  the  homeless  of  those  days. 

The  statutes  made  for  punishing  rogues,  vaga- 
bonds, night  walkers  and  such  other  idle  persons  are, 
says  the  anonymous  legal  author,  "  a  large  Branch 
of  the  Constable's  Office,  and  herein  two  things  are 
to  be  known  : — 

"  (i)  What  is  a  Rogue  and  who  is  to  be  accounted 
a  Vagabond  ? 

"  (2)  What  is  to  be  done  unto  them  ?  " 

The  charming  impersonal  technical  spirit  of  this 
little  work  is  beyond  all  praise.     Not  a  word  is  ever 

4 


PAST  AND   PRESENT 

used  to  remind  you  that,  after  all,  a  rogue  and  a 
vagabond  is  a  man  and  a  brother.  You  are  taught 
first  to  diagnose  him  as  Izaak  Walton  would  teach 
the  young  angler  how  to  discover  the  singling  that 
did  not  usually  stir  in  the  daytime,  and  having 
captured  your  rogue  and  vagabond,  you  are  then 
enlightened  as  to  the  various  methods  of  killing  or 
curing  him. 

And  first  you  are  to  note  that  all  persons  above 
the  age  of  seven,  man  or  woman,  married  or  single, 
that  wander  abroad  without  a  lawful  passport  and 
give  no  good  account  of  their  travel  are  accounted 
rogues.  Then  follows  a  very  lengthy  list  of  such  as 
are  "  of  a  higher  degree  and  are  to  be  accounted  as 
Rogues,  Vagabonds  and  sturdy  Beggars."  Such  are 
all  Scholars  and  Sea-faring  men  that  beg,  wandering 
persons  using  unlawful  games,  subtle  crafts,  or 
pretending  to  have  skill  in  telling  of  fortunes  by  the 
marks  or  figures  on  the  hands  or  face,  Egyptians  or 
Gypsies.  All  Jugglers  or  Slight-of-hand  Artists 
pretending  to  do  wonders  by  virtue  of  Hocus  Pocus, 
the  Powder  of  Pimper  le  Pimp,  or  the  like  ;  all 
Tinkers,  Pedlars,  Chapmen,  Glassmen,  especially  if 
they  be  not  well  known  or  have  a  sufficient  testi- 
monial. All  collectors  for  Gaols  or  Hospitals, 
Fencers,  Bearwards,  common  players  of  interludes, 
and  Fiddlers  or  Minstrels  wandering  abroad.  Also 
Persons  delivered  out  of  Gaols  who  beg  their  fees, 
such  as  go  to  and  from  the  Baths  and  do  not  pursue 
their  License,  Soldiers  and  Mariners  that  beg  and 
counterfeit  certificates  from  their  commanders. 
And,  lastly  :    "  All  Labourers  which  wander  abroad 


THE  LAW  AND  THE  POOR 

out  of  their  respective  Parishes,  and  refuse  to  work 
for  wages  reasonably  taxed,  having  no  Livelyhood 
otherwise  to  maintain  themselves,  and  such  as  go 
with  general  Passports  not  directed  from  Parish  to 
Parish." 

In  a  word,  all  the  unfortunate  poor  who  would  not 
do  as  they  were  told  by  their  pastors  and  masters 
and  wanted  to  work  and  amuse  themselves  in  their 
own  way  were  rogues  and  vagabonds.  And  it  is 
not  without  interest  to  run  your  eye  over  this  list, 
for  the  statutory  rogue  and  vagabond  is  still  with  us 
and  our  Poor  Law  of  to-day  suffers  from  its  direct 
hereditary  connection  with  the  Poor  Law  of  the 
eighteenth  century. 

The  duty  of  "  The  Compleat  Constable  "  was,  in 
the  words  of  Dogberry,  to  "  comprehend  all  vagrom 
men  "  and  he  was  liable  to  a  fine  of  ten  shillings  for 
every  neglect.  Moreover,  if  you  were  a  stalwart 
fellow,  you  could  apprehend  your  own  rogue  and 
vagabond  and  hand  him  over  to  the  constable,  who 
was  bound  to  receive  him. 

Having  dealt  in  accurate  detail  with  the  classifica- 
tion and  identification  of  rogues,  we  come  next  to 
the  chapter  on  treatment,  which  is  best  given  in  the 
simple  words  of  the  original.  "  The  Punishment  is 
after  this  manner.  The  Constable,  Headburrough 
or  Tythingman  assisted  by  the  Minister  and  one 
other  of  the  Parish,  is  to  see  (or  do  it  himself),  That 
such  Rogues  and  Vagabonds,  etc.,  be  stript  Naked 
from  the  middle  upwards  and  openly  Whipped  till 
their  Body  be  bloody  and  then  forthwith  to  be  sent 
away  from  Constable  to  Constable,  the  next  straight 

6 


PAST  AND   PRESENT 

way  to  the  place  of  their  Birth  ;  and  if  that  cannot  be 
known  then  to  the  place  where  they  last  Dwelt,  by 
the  space  of  one  whole  Year  before  the  time  of  such 
their  Punishment  ;  and  if  that  cannot  be  known 
then  to  the  Town  through  which  they  last  passed 
unpunished."  If,  however,  none  of  these  habitats 
was  discoverable,  the  vagrom  man  was  sent  to  the 
house  of  correction  or  common  gaol,  where  he  was 
put  to  hard  labour  for  twelve  months. 

It  is  only  fair  to  remember,  "  that  after  such  Vaga- 
bond is  whipt  as  aforesaid  he  is  to  have  a  Testi- 
monial " — is  this  the  origin  of  people  asking  for 
testimonials  ? — "  under  the  Hand  and  Seal  of  the 
Constable  or  Tything-man  and  the  Minister  testify- 
ing the  day  and  place  of  his  Punishment  ;  as  also  the 
place  to  which  he  is  to  be  conveyed,  and  the  time 
limited  for  his  own  Passage  thither  :  And  if  by  his 
own  default  he  exceed  that  time  then  he  is  again  to 
be  whipt — and  so  from  time  to  time  till  he  arrive  at 
the  place  limited." 

In  the  good  old  days  of  Merrie  England  the  chief 
entertainment  of  the  villagers  must  have  been  to 
crowd  round  the  stocks  and  the  whipping  post  on  the 
village  green — some  of  which  are  existing  to  this  day 
— just  as  their  city  cousins  swarmed  along  the  road 
to  Tyburn.  And  if  you  had  suggested  that  the 
players  or  the  fiddlers  were  a  more  wholesome  amuse- 
ment for  the  people  than  these  cruel  sights,  you 
would  not  only  have  shocked  the  minister  but  would 
have  rendered  yourself  liable  to  be  treated  as  a 
vagrom  man  and  to  receive  a  testimonial  from  the 
constable.     It  is  easy  to-day  to  see  the  wrongdoing 

7 


THE   LAW  AND   THE   POOR 

of  much  of  this,  but  it  was  not  to  be  expected  that 
the  citizens  of  the  time  should  see  any  evil  in  the 
everyday  cruelties  they  were  used  to.  The  law 
seems  to  have  been  hard  on  the  poor  then,  but  very 
few  worried  about  it. 

History  is  constantly  showing  us  that  in  matters 
touching  the  imperfections  of  our  own  system  of  law 
we  are  colour  blind  to  the  cruelties  we  commit 
ourselves  and  easily  moved  to  indignation  by  the 
horrors  and  wickednesses  committed  by  foreigners, 
especially  if  they  are  foreigners  who  have  never 
known  the  blessings  of  the  particular  religion  we 
profess.  When  Fynes  Moryson  was  travelling  in 
Turkey  at  the  end  of  the  sixteenth  century,  he  set 
down  with  reasonable  detestation  some  of  the 
gruesome  things  he  observed.  "Touching  their 
Corporal  and  Capital  Judgments,"  he  writes  :  "  For 
small  offences  they  are  beaten  with  cudgels  on  the 
soles  of  the  feet,  the  bellies  and  backs,  the  strokes 
being  many  and  painful  according  to  the  offence  or 
the  anger  of  him  that  inflicts  them.  Myself  did  see 
some  hanging  and  rotting  in  chains  upon  the 
gallows." 

Yet  in  England  he  might  have  seen  many  of  his 
fellow  countrymen  hanging  and  rotting  in  chains, 
for  there  was  at  that  date  and  for  many  years  after- 
wards no  country  with  a  more  evil  record  than 
England  for  the  practice  of  capital  punishment  for 
minor  offences.  As  to  mere  corporal  punishment, 
there  was  not  a  village  in  England  without  its 
whipping  post,  and  a  common  sight  in  the  streets  of 
the  city  was  to  see  a  poor  wretch  being  whipped  at 

8 


PAST  AND   PRESENT 

the  cart's  tail.  In  ordinary  cases  the  journey  was 
from  Newgate  to  Ludgate,  or  from  Charing  Cross  to 
Westminster,  but  for  really  bad  cases  it  was  extended 
from  Newgate  to  Charing  Cross.  And  not  only  did 
these  punishments  exist  in  England,  but  the  popu- 
lace enjoyed  them.  One  of  the  sights  of  London  was 
to  see  the  women  whipped  in  the  Bridewell.  The 
Court  of  Governors  held  their  board  meeting,  pre- 
sided over  by  a  magistrate,  and  the  sentence  was 
executed  in  their  presence  and  continued  until  the 
President  struck  the  table  in  front  of  him  with  a 
hammer.  The  cry,  "  O  good  Sir  Robert,  knock  ! 
Pray,  good  Sir  Robert,  knock  !  "  which  the  victims 
screamed  out  whilst  under  the  lash,  became  a  com- 
mon slang  cry  among  the  lower  orders  in  the  streets 
of  London  in  the  seventeenth  century. 

There  can  be  no  doubt  about  the  horrors  of  the 
old  prisons,  but  it  was  only  men  and  women  of 
especial  insight  who  recognised  that  there  was  real 
evil  in  them.  Literature  and  art  did  much  to 
arouse  the  public  conscience.  There  is  a  strong 
description  of  the  Bridewell  in  "  Roderick  Random," 
where  Smollett  makes  Miss  Williams  tell  her  life 
story.  In  this  prison,  she  says,  "  I  actually  believed 
myself  in  hell  tormented  by  fiends  ;  indeed,  there 
needs  not  a  very  extravagant  imagination  to  form 
that  idea  ;  for  of  all  the  scenes  on  earth  that  of 
Bridewell  approaches  nearest  the  notion  I  had 
always  entertained  of  the  infernal  regions.  Here 
I  saw  nothing  but  rage,  anguish  and  impiety  ;  and 
heard  nothing  but  groans,  curses  and  blasphemy. 
In  the  midst  of  this  hellish  crew  I  was  subjected  to 

9 


THE  LAW  AND   THE   POOR 

the  tyranny  of  a  barbarian  who  imposed  upon  me 
tasks  that  I  could  not  possibly  perform  and  then 
punished  my  incapacity  with  the  utmost  rigour  and 
inhumanity.  I  was  often  whipped  into  a  swoon 
and  lashed  out  of  it,  during  which  miserable  intervals 
I  was  robbed  by  my  fellow-prisoners  of  everything 
about  me  even  to  my  cap,  shoes  and  stockings  ' 
I  was  not  only  destitute  of  necessaries  but  even 
of  food,  so  that  my  wretchedness  was  extreme." 

No  one  need  suppose  that  Smollett  is  guilty  of 
exaggeration,  for  the  well-known  plate  of  Hogarth 
shows  us  the  actual  scene  and  the  records  of  the 
place  are  numerous.  There  were,  of  course,  just 
as  many  good  and  charitable  men  and  women  then 
as  there  are  now,  but  the  possibility  that  a  Bridewell 
was  a  thing  that  the  world  had  then  no  use  for  was 
entirely  beyond  the  thought  of  the  eighteenth 
century  citizen.  In  the  same  way  how  few  of  us 
recognise  that  there  is  much  room  for  reform  in 
the  penal  system  of  to-day. 

It  is  natural  that  it  should  be  so.  We  arrive  in 
the  world  knowing  nothing  much  about  it,  we  are 
brought  up  to  believe  that  everything  that  has  been 
going  on  for  the  last  few  centuries  has  been  for  the 
best,  and  the  tired  old  ones  who  are  leaving  us  are 
never  tired  enough  to  leave  off  telling  us  that  they 
have  made  every  possible  reform  that  it  was  safe 
and  advisable  to  make.  In  the  few  years  of  hustling 
life  and  in  the  scanty  hours  that  he  can  spare  from 
earning  his  daily  bread  the  average  citizen  has  little 
time  and  opportunity  to  investigate  the  social 
system  of  which  he  is  a  unit,  or  to  understand  how 

10 


PAST  AND   PRESENT 

or  why  the  wheels  of  the  world  machine  are  grinding 
unevenly.  When  we  read  of  the  horrors  of  two  or 
three  hundred  years  ago,  it  should  not  be  to  cast 
a  reproach  against  our  fathers,  but  rather  to  learn 
who  were  the  men  and  women  who  moved  the  world 
of  that  day  to  see  things  as  they  were.  These 
glorious  spirits  have  enabled  us  to  enter  upon  our 
inheritance  free  from  the  worst  degradations  of 
the  past  and  we  may  best  render  them  thanks  and 
praise  by  learning  to  follow  their  example. 

I  make  no  doubt  that  most  of  us  are  much  like 
old  Fynes  Moryson,  who,  being  an  ordinary  average 
Englishman,  saw  the  everyday  horrors  of  his  own 
country,  but  was  in  no  way  impressed  by  them,  yet 
was  moved  to  grave  indignation  at  the  wickedness 
and  cruelties  of  foreigners.     Truly  the  seventeenth 
century  Turk  was  a  cruel  beast.     Moryson  tells  us 
with  honest  reprobation,   but  in  gruesome  detail, 
of  the  Turkish  methods  of  impaling,  where  a  "man 
may  languish  two  or  three  days  in  pain  and  hunger  ; 
if   torment  will  permit  him  in   that   time   to   feel 
hunger  for  no  man  dares  give  him  meat,"  and  of 
casting  down  malefactors  to  pitch  upon  hooks  and 
other   nameless   horrors.     Yet   if   he   had   been   in 
London  on  October  19th,  1615,  and  dropped  into 
the  Guildhall,  he  might  have  heard  the  Lord  Chief 
Justice  of   England,   the  great   Coke,   using   much 
persuasion  to  Richard  Weston,  who,  being  accused 
of  the  murder  of  Sir  Thomas  Overbury,  stood  mute, 
refusing  to  plead. 

Coke   and  his  brother  judges,  having  failed   to 
persuade  the  wretched  Weston  to  utter  a  plea  of 

11 


THE  LAW  AND   THE   POOR 

not  guilty,  the  Lord  Chief  Justice  repeated  for  his 
benefit  the  law  of  England  at  that  time  and  reminded 
him  that  the  prisoner  who  wilfully  stood  mute  must 
undergo  the  peine  forte  et  dure,  the  extremity  and 
rigour  whereof  was  expressed  in  these  words,  "  Onere, 
f rigor e  et  fame."  "  For  the  first,"  continued  his 
Lordship,  "  he  was  to  receive  his  punishment  by 
the  law,  to  be  extended  and  then  to  have  weights 
laid  upon  him  no  more  than  he  was  able  to  bear 
which  were  by  little  and  little  to  be  increased.  For 
the  second,  that  he  was  to  be  exposed  in  an  open 
place  near  the  prison  in  the  open  air,  being  naked. 
And,  lastly,  that  he  was  to  be  preserved  with  the 
coarsest  bread  that  could  be  got,  and  water  out  of 
the  next  sink  or  puddle  to  the  place  of  execution, 
and  that  day  he  had  water  he  should  have  no  bread, 
and  that  day  he  had  bread  he  should  have  no  water  ; 
and  in  this  torment  he  was  to  linger  as  long  as 
nature  could  linger  out  so  that  often  times  men 
lived  in  that  extremity  eight  or  nine  days  ;  adding 
further  that  as  life  left  him  so  judgment  should 
find  him.  And  therefore  he  required  him  upon 
consideration  of  these  reasons  to  advise  himself  to 
plead  to  his  country." 

Notwithstanding  this  advice  the  wretched  man 
continued  mute,  but  after  a  consideration,  during 
an  adjournment  of  three  or  four  days,  of  the  law 
of  procedure  as  laid  down  by  Lord  Chief  Justice 
Coke,  Weston  thought  better  of  it  and  pleaded  not 
guilty,  and  was  duly  convicted  and  executed. 

How  illogical  it  seems  that  a  citizen  whose  State 
executed  this  form  of  torture  on  its  prisoners  should 

12 


PAST   AND   PRESENT 

hold  up  the  holy  hands  of  horror  at  the  variations 
of  cruelty  that  satisfied  the  lust  of  the  unspeakable 
Turk  !  The  peine  forte  et  dure  remained  one  of  the 
pillars  of  our  law  until  the  reign  of  George  III.  and 
was  carried  into  execution  in  the  reign  of  Queen 
Anne  and  George  II. — so  obstinately  do  we  cling 
to  our  ancient  precedents  and  so  fearful  are  we  of 
facing  the  narrow  paths  that  lead  to  better  things. 

When  Oliver  Goldsmith  wrote,  "  Laws  grind  the 
poor  and  rich  men  rule  the  law,"  I  do  not  know  that 
he  wished  to  make  any  specially  unkind  attack 
upon  the  rich.  I  imagine  he  merely  intended  to 
state  a  fact  which  seems  in  all  ages  to  have  been 
universally  true.  I  do  not  suppose  that  in  the 
middle  of  the  eighteenth  century  anyone  in  the 
least  recognised  the  actual  horrors  that  were  going 
on  around  him  unless  it  was  some  poet  and  dreamer 
like  Oliver  himself.  The  strong,  sensible  men  of 
that  generation  were  as  assured  of  their  own 
righteousness  as  they  are  to-day. 

Dr.  Johnson  told  Dr.  Maxwell  that  "  the  poor  in 
England  were  better  provided  for  than  in  any  other 
country  of  the  same  extent  ;  he  did  not  mean  little 
cantons  or  petty  republics.  Where  a  great  propor- 
tion of  the  people  (said  he)  are  suffered  to  languish 
in  helpless  misery  that  country  must  be  ill-policed 
and  wretchedly  governed  ;  a  decent  provision  for 
the  poor  is  the  test  of  civilisation.  Gentlemen  of 
education,  he  observed,  were  pretty  much  the  same 
in  all  countries  ;  the  condition  of  the  lower  orders, 
the  poor  specially,  was  the  true  mark  of  national 
discrimination." 


THE   LAW  AND   THE   POOR 

The  good  Doctor  rolled  all  that  excellent  stuff  out 
one  evening  in  1770  to  the  Rev.  Dr.  Maxwell,  the 
assistant  preacher  of  the  Temple,  who,  like  Boswell, 
faithfully  recorded  what  he  remembered  of  it  in  the 
morning — I  doubt  not  that  if  Dr.  Johnson  had  lived 
in  1670,  or  1870,  or  1970,  or  had  flourished  under 
Caligula  or  Nero,  he  would  have  rolled  out  the  same 
sonorous  complacent  nonsense  to  some  sort  of  faith- 
ful human  gramophone  who  would  have  recorded  the 
utterances  of  his  master's  voice  with  a  canine 
credulity  in  its  omniscience. 

There  is  nothing  extraordinary  in  the  divergence 
of  the  views  of  Oliver  Goldsmith  and  Dr.  Johnson 
about  the  law  and  the  poor.  The  good  Doctor  held 
the  strong,  sensible,  Tory  view  that  the  system  of 
treating  the  poor  handed  down  to  us  by  our  fore- 
fathers was  the  right  and  proper  system,  that  it  was 
at  least  as  good  as  any  other  system,  that  nothing 
anyhow  could  be  learned  from  the  hated  foreigner, 
and  that  to  pander  to  dreamers  and  busybodies,  who 
found  fault  and  wanted  to  alter  things,  was  to  start 
down  the  broad  road  of  destruction.  Oliver  Gold- 
smith might  have  thought  the  same  thing  if  he  had 
been  an  Englishman,  but  he  had  the  saving  grace  of 
Irish  blood  in  his  veins,  and  the  true  Irish  have  the 
power  of  looking  beyond  the  present,  and  are  often 
prophets  and  dreamers  of  dreams,  seeing  signs  and 
wonders  that  we  wot  not  of. 

"  Sir  !  "  said  Dr.  Johnson  on  another  occasion,  and 
when  he  began  like  that  you  knew  that  wisdom  was 
about ;  "  the  age  is  running  mad  after  innovations  ; 
all  the  business  of  the  world  is  to  be  done  in  a  new 

14 


PAST  AND   PRESENT 

way  ;  Tyburn  itself  is  not  safe  from  the  fury  of 
innovation." 

It  having  been  argued  that  this  was  an  improve- 
ment— "  No,  sir  (said  he  eagerly),  it  is  not  an  im- 
provement ;  they  object  that  the  old  method  drew 
together  a  number  of  spectators.  Sir,  executions 
are  intended  to  draw  spectators.  If  they  do  not 
draw  spectators,  they  don't  answer  their  purpose. 
The  old  method  was  most  satisfactory  to  all  parties  ; 
the  public  was  gratified  by  a  procession ;  the 
criminal  was  supported  by  it.  Why  is  all  this  to  be 
swept  away  ?  " 

And  Boswell  and  Sir  William  Scott  nodded 
approval,  just  as  you  and  I  would  have  done  or  do 
now  when  some  important  old  gentleman  lays  down 
the  law  about  something  of  which  he  knows  perhaps 
even  a  little  less  than  we  do  and  we  are  too  courteous 
or  cowardly  to  tell  him  that  at  the  back  of  our  minds 
we  believe  he  is  talking  nonsense. 

If  you  would  be  gratified  by  a  Tyburn  procession, 
you  may  see  one  any  day  for  yourself  in  Hogarth's 
print  of  the  awful  end  of  the  Idle  Apprentice.  The 
ragged  men,  women  and  children  bawling  dying 
speeches  about  the  streets,  the  criminal  in  the  cart 
sitting  beside  his  coffin,  the  chaplain  exhorting  the 
poor  outcast,  who,  if  he  still  courted  popularity, 
scoffed  openly,  shouting  to  his  friends  on  St.  Sepul- 
chre's steps  where  they  stood  with  their  nosegays  to 
give  their  pal  a  last  greeting.  What  a  solemn  impres- 
sive scene  !  All  the  way  up  Holborn  there  is  a  crowd 
so  great  that  every  twenty  or  thirty  yards  the  cart 
is  pulled  up,  and  now  someone  brings  out  wine  and 

15 


THE   LAW   AND   THE   POOR 

the  malefactor  drinks  a  last  toast.  And  when  he 
reaches  the  fatal  tree  the  ribald  mob  swears  and 
laughs  and  shouts  out  obscene  jests.  Amid  these 
noises  a  psalm  is  sung  and  the  sound  of  it  drowned 
in  filthy  tumult.  So  was  the  life  of  a  fellow  sinner 
brought  to  an  end  in  the  eighteenth  century. 

And  there  were  men  and  women  who  wanted  to 
abolish  it  all.  It  was  too  much  for  Dr.  Johnson. 
"  Tyburn  itself  not  safe  from  the  fury  of  innovation !  " 
Fancy  that  !  What  a  terrible  outlook  !  The  law 
deserting  the  poor  and  giving  them  no  more  cheap 
excursions  to  Tyburn — well  might  the  good  Doctor 
shake  his  dear  old  head  and  prophesy  woe. 

And  when  Dr.  Johnson  upheld  the  English  treat- 
ment of  the  poor  in  1770,  we  may  suppose  he  knew 
as  much  about  it  as  a  literary  professor  of  to-day 
knows  about  what  is  going  on  in  the  workhouse,  or 
the  police  court,  or  the  County  Court  of  our  own 
time.  The  belief  that  the  world  is  the  best  possible 
of  worlds  has  its  value  in  making  for  the  stability  of 
things,  but  mere  ignorance  of  the  facts  of  life,  coupled 
with  that  strange  form  of  piety  which  accepts  what- 
ever system  was  good  enough  for  a  past  age  as 
the  only  possible  system  for  this,  renders  the  pace  of 
social  reform  as  imperceptible  to  the  human  mind  as 
the  movements  of  glaciers. 

If  a  history  of  the  law  and  the  poor  were  to  be 
written,  it  would  be  a  story  of  the  lower  classes 
emerging  out  of  slavery  into  serfdom,  out  of  serfdom 
into  freedom  of  a  limited  character,  and  every  age 
finding  new  abuses  to  remedy  and  trying  in  some 
small  way  to  rid  the  law  of  some  of  those  traits  of 

16 


PAST   AND   PRESENT 

barbarism  which  linger  in  its  old-world  features.  To 
each  new  generation  the  terrors  of  the  past  iniquity 
of  the  law  are  mere  nightmares.  We  can  scarcely 
believe  that  what  we  read  is  true  any  more  than  our 
grandchildren  will  be  able  to  understand  how  we  were 
able  to  tolerate  some  of  the  everyday  legal  incidents 
of  our  daily  courts. 

Less  than  a  hundred  years  ago  at  Salford  Quarter 
Sessions  there  were  over  two  hundred  prisoners,  all 
poor  and  mostly  very  young,  and  the  law  thought 
nothing  of  transporting  them  for  life  or  fourteen 
years  as  a  punishment  for  small  thefts.  And  horrible 
as  all  this  cruelty  was,  yet  I  make  little  doubt  that 
the  judges  of  the  time,  with  very  few  exceptions, 
administered  the  law  as  humanely  as  they  do  to-day. 
Sir  Thomas  Starkie,  the  learned  Chairman  of  the 
Salford  Epiphany  Quarter  Sessions  in  1824,  no 
doubt  felt  very  grieved  when  he  sentenced  Martha 
Myers,  aged  sixteen,  and  Mary  Mason,  twenty- 
four,  to  seven  years'  transportation.  I  expect  he 
thought  he  was  "  giving  them  another  chance." 
Perhaps  he  was.  We  do  not  know.  They  may 
have  become  the  mothers  of  big-limbed  colonial 
aristocrats  instead  of  peopling  the  Hundred  of 
Salford  with  another  generation  of  feeble-minded 
criminals. 

Nowadays  there  is  a  tendency  among  the  less 
discerning  of  mankind  to  set  down  all  the  rough  edges 
and  inequalities  of  the  law  to  the  fault  of  the  judges, 
though  in  truth  they  have  but  a  small  part  in  the 
making  of  new  laws,  and  I  do  not  think  they  can  be 
rightly  blamed  for  harsh  administration.  They  get 
l.p.  17  c 


THE   LAW  AND   THE   POOR 

the  blame  because  they  are  the  figure-heads  of  the 
show,  so  to  speak,  and  the  public  know  nothing  of 
the  difficulties  under  which  the  judges  labour.  It 
is  their  duty  to  administer  the  complicated  modern 
laws  turned  out  by  Parliament  in  a  somewhat 
haphazard  fashion,  and  they  are  bound  to  keep  alive 
old-world  laws  that  ought  long  ago  to  have  been 
shot  on  to  the  rubbish  heap.  Nearly  all  the  law 
relating  to  the  poor  will  be  found  to  be  defective  to 
our  modern  sympathies,  just  because  it  is  a  patching 
up  of  the  ancient  cruel  pagan  law  of  past  ages  and 
does  not  break  bravely  away  from  the  old  super- 
stitious uses  and  close  for  ever  the  volumes  of 
laws  that  were  made  in  the  days  when  liberty  and 
equality  and  fraternity  were  words  of  anarchy  and 
rebellion. 

The  poor  are  suffering  to-day  at  the  hands  of  the 
law  because  in  the  evolution  of  things  we  have  a  lot 
of  old  derelict  law  made  by  slaveowners  for  slaves, 
by  masters  for  serfs,  by  the  landlords  for  the  landless. 
It  is  law  that  has  no  more  relation  to  the  wants  of 
to-day,  and  would  be  of  no  more  purpose  to  a 
Ministry  of  Justice — if  we  had  one — than  crossbows 
and  arquebuses  would  be  to  the  War  Office,  or 
coracles  to  the  Admiralty.  And,  instead  of  cursing 
the  judges,  who,  poor  fellows,  are  doing  their  best,  I 
wish  our  parliamentary  masters  would  look  into  the 
history  of  the  matter.  They  would  find,  I  think,  that 
in  the  last  few  years  enormous  reforms  have  been 
made  in  modifying  the  cruelty  of  the  law  to  the  poor, 
and  might  discover,  by  marking  back  on  the  track  of 
1  ast  reform,  the  lines  upon  which  further  evolution 


PAST  AND  PRESENT 

may  be  hastened.  One  thing,  I  think,  they  will  be 
convinced  about  :  it  is  not  the  judges  who  are  hard 
on  the  poor,  it  is  the  law.  It  is  the  sins  of  the  law- 
givers of  the  past  that  the  poor  are  expiating 
to-day. 


19  c  2 


CHAPTER   II 

THE   ANCIENTS   AND   THE    DEBTOR 

My  thoughts  are  with  the  Dead,  with  them 

I  live  in  long-past  years. 
Their  virtues  love,  their  faults  condemn, 

Partake  their  hopes  and  fears, 
And  from  their  lessons  seek  and  find 
Instruction  with  a  humble  mind. 

Robert  Southey  : 
"  My  Days  among  the  Dead  are  past." 

I  find  this  question  of  the  debtor,  and  our  modern 
method  of  imprisoning  the  poorer  variety  of  the 
genus,  in  the  forefront  of  any  consideration  of  the 
problem  of  the  law  and  the  poor,  because  to  my 
mind  it  is  a  clear  and  classic  instance  of  the  way  in 
which  it  comes  about  that  the  law  with  us  is  a 
respecter  of  persons. 

The  physiological  tutor  will  take  his  pupils  into 
the  laboratory  and  cut  up  a  rabbit  to  show  them 
where  their  livers  ought  to  be,  the  microscopist  will 
choose  a  newt  to  exhibit  to  you  the  circulation  of 
the  blood,  and  in  like  manner,  for  my  purposes,  the 
debtor  seems  to  me  to  possess  all  the  necessary  legal 
incidents  in  him  through  which  one  can  give  an 
excellent  object  lesson  on  the  law  and  the  poor. 
There  is  no  legal  mystery  about  a  debtor ;  he  is  a 
common  object  of  our  legal  seashore,  as  ancient  of 

20 


THE  ANCIENTS  AND  THE  DEBTOR 

lineage  as  the  periwinkle  and  sometimes  almost  as 
difficult  to  get  at.  Everyone  has  in  his  life  at  some 
time  or  other  been  a  debtor,  though  not  all  of  us 
have  attained  to  the  dignity  of  a  co-respondent,  a 
mortgagor,  a  garnishee,  a  bankrupt  or  a  cestui  que 
trust. 

It  seems  to  me  that  to  demonstrate  to  the  man  in 
the  street  the  unfairness  of  our  law  of  imprisonment 
for  debt  is  such  a  feasible  proposition,  that  I  have 
come  to  regard  the  subject  as  very  fitting  for  the 
citizen's  kindergarten  education  on  legal  reform. 
Once  understand  the  history,  and  the  causes  of  the 
continued  existence,  of  imprisonment  for  debt,  and 
its  evil  effect  on  right  action,  conduct  and  social  life, 
and  you  will  find  it  easier  to  diagnose  the  more 
obscure  legal  diseases  which  are  partially  the  outcome 
and  partially  the  cause  of  much  real  distress  among 
the  poor.  Carlyle  tells  us  to  "  examine  history  for 
it  is  philosophy  teaching  by  experience,"  and,  if  we 
take  his  advice  in  this  matter  of  imprisonment  for 
debt,  we  shall,  I  think,  be  bound  to  admit  that  what 
is  going  on  among  us  day  by  day  in  the  County  Courts 
of  this  country  is  in  historical  fact  a  relic  of  a  very 
ancient  barbarism. 

It  is  the  more  extraordinary  to  me  that  this  relic 
should  still  be  venerated,  since  history  also  makes  it 
clear  that  teachers,  prophets  and  law-givers  of  all 
ages  have  testified  to  their  sense  of  the  cruelty  and 
injustice  of  the  law  which  thrusts  a  man  into  prison 
because  he  does  not  pay  his  neighbour  what  he  owes 
him.  I  propose,  therefore,  before  I  set  down 
exactly  what  we  are  doing  to-day,  to  trace  the  pedi- 

21 


THE   LAW  AND  THE   POOR 

gree  of  our  present  system  of  dealing  with  debtors 
and  show  you  historically  and  cinematographically, 
as  it  were,  how  the  world  has  treated  its  debtors  in 
the  past  and  what  the  saner  men  of  different  ages 
thought  about  it  at  the  time.  In  this  way  the  man 
in  the  street  of  to-day  will  have  the  material  for 
forming  a  sound  judgment  on  the  question  of  what 
we  should  do  with  the  poor  debtor. 

And  to  begin  with  the  Old  Testament.  Let  us 
remember  with  gratitude  the  remarkable  action  of 
Elisha  in  the  matter.  Elisha  went  the  length  of 
performing  a  miracle  to  pay  the  bailiffs  out.  There 
are  many  poor  widows  in  the  mean  streets  of  our 
own  cities  looking  down  the  road  for  the  Elisha  of 
to-day  who  cometh  not.  Miracles  do  not  happen 
nowadays  ;  people  don't  do  such  things.  Still  it  is 
interesting  to  know  that  there  was  imprisonment  for 
debt  in  Elisha's  day,  just  as  there  is  now — for  the 
poor  and  only  for  the  poor — and  it  is  encouraging 
to  know  what  Elisha  thought  about  it. 
What  happened  was  this  : — 
The  County  Court  bailiffs  of  the  County  Court  of 
Israel,  holden  at  Samaria,  went  with  a  body-warrant 
to  seize  the  two  sons  of  a  poor  widow  on  behalf  of  a 
creditor  of  her  late  husband,  just  as  they  might  do 
to-day. 

Fortunately,  the  deceased  had  been  a  servant 
that  did  fear  the  Lord,  and  Elisha,  hearing  of  the 
trouble,  went  down  to  the  house,  and  in  that  simple, 
kindly  way  that  the  dear  old  prophets  had  of  putting 
little  troubles  straight  for  members  of  their  congre- 
gations and  also  no  doubt  to  show  the  contempt  he 

22 


THE  ANCIENTS  AND  THE  DEBTOR 

had  for  the  proceedings  of  the  County  Court  of 
Samaria,  sent  the  widow  out  to  borrow  empty 
vessels  of  her  neighbours.  These  he  miraculously 
filled  with  oil  of  the  best,  and  the  only  pity  of  it  was 
that  there  were  no  more  vessels  to  fill,  for  Elisha 
was  in  form  that  morning,  and  was  sorry  to  stop. 
When  it  was  over  he  said  to  the  widow  :  "Go  sell 
the  oil  and  pay  thy  debt  and  live  thou  and  thy 
children  of  the  rest." 

I  am  very  fond  of  that  stor}'.  I  like  to  believe 
it  really  happened.  I  wish  it  could  happen  to-day, 
for  there  are  many  poor  women  in  much  the 
same  straits  as  that  poor  widow.  I  have  never 
heard  the  text  referred  to  in  churches  and 
chapels,  and  I  am  not  surprised.  A  minister 
who  preached  about  it  would  have  to  explain  that 
he  could  not  do  miracles  of  that  kind  himself,  and 
if  he  were  to  do  the  next  best  thing  and  preach  about 
the  iniquity  of  imprisonment  for  debt  straight  from 
the  shoulder — as  I  am  sure  Elisha  would  have  done — 
the  respectable  credit  draper,  the  pious  grocer, 
and  all  the  noble  army  of  tally-men  would  get  up 
in  their  pews  and  walk  out  of  his  church  or  chapel 
in  disgust. 

The  days  of  miracles  are  past,  but  if  it  was  worth 
while  for  a  holy  man  like  Elisha  to  show  what  he 
thought  about  imprisonment  for  debt,  by  means  of 
a  miracle,  surely,  after  all  these  ages,  we  might  have 
improved  that  particular  piece  of  barbarism  off  the 
face  of  the  earth. 

But  no.  The  poor  are  worse  off  now  than  they 
were  then.     The  bailiffs  come  for  their  bodies  on 

23 


THE   LAW  AND  THE   POOR 

behalf  of  their  creditors  still.  And  they  look  down 
the  road  in  vain.     There  is  no  Elisha. 

And  when  you  come  to  the  New  Testament  the 
matter  is  laid  down  even  more  clearly.  Matthew  vi. 
12  has  the  actual  words  of  Our  Lord's  Prayer  to  be, 
"  And  forgive  us  our  debts  as  we  also  have  forgiven 
our  debtors."  If  the  forgiveness  of  our  debtors  is 
a  condition  precedent  to  our  own  forgiveness,  most 
of  us  are  in  a  parlous  state.  But  is  it  too  much  in 
this  Christian  country  of  ours  to  suggest  that,  even 
if  the  highest  ideals  of  the  Master  are  beyond  our 
attainment,  we  need  not  insult  our  belief  by  con- 
tinuing a  barbaric  pagan  system  of  cruelty  which 
has  been  singled  out  for  special  disapprobation  by 
the  Word  that  we  cannot  shut  our  ears  to  ? 

You  remember  the  parable  of  the  king  that  took 
account  of  his  servants  which  Matthew  sets  out  in 
his  eighteenth  chapter.  How  a  servant  owed  the 
king  ten  thousand  talents  and,  as  he  had  not  where- 
with to  pay,  his  lord  commanded  him  to  be  sold, 
and  his  wife  and  children,  and  all  that  he  had,  and 
payment  to  be  made.  Note  that  in  those  days  the 
wife  and  children  were  actually  sold  into  slavery. 
We  do  not  do  that :  we  remove  the  bread-winner, 
only,  to  gaol  and  care  for  his  wife  and  children  in 
the  workhouse.  It  is  encouraging  to  find  this  much 
reform  after  nineteen  Christian  centuries. 

The  servant,  you  will  recollect,  pleaded  with  the 
king,  saying,  "  Have  patience  with  me,  and  I  will 
pay  thee  all."  Debtors  have  not  altered  much 
since  that  date,  and  the  text  has  a  familiar  ring  in 
the  ears  of  a  County  Court  judge.     The  lord  of  that 

24 


THE  ANCIENTS  AND  THE  DEBTOR 

servant,  being  moved  by  compassion,  released  him 
and  forgave  him  the  debt.  This  is  important  to 
remember,  for  the  servant  being  forgiven  his  debt 
was  without  excuse  for  his  subsequent  contemptible 
conduct.  And,  indeed,  I  have  often  found  that  men 
who  have  been  most  leniently  treated  in  their  own 
failures  by  those  in  a  better  position,  are  themselves 
most  greedy  in  extorting  the  uttermost  farthing 
from  their  smaller  victims.  Speaking  generally,  it  is 
not  the  most  desirable  class  of  trader  that  makes  use 
of  the  debt-collecting  system  of  the  County  Court. 
The  servant  of  the  parable  was  the  meanest  of 
curs.  He  "  went  out,  and  found  one  of  his  fellow- 
servants,  which  owed  him  a  hundred  pence  :  and 
he  laid  hold  on  him,  and  took  him  by  the  throat, 
saying,  Pay  what  thou  owest."  Here,  again,  we 
may  flatter  ourselves  on  our  superior  procedure. 
If  this  had  happened  in  Lambeth,  the  servant  would 
not  have  been  allowed  to  go  for  his  fellow  servant 
with  such  jubilant  audacity.  Nowadays  everything 
would  be  done  in  legal  decency  and  order.  The 
debt  being  for  a  hundred  pence,  and,  therefore,  being 
within  the  jurisdiction  of  the  County  Court,  a 
summons  would  have  to  be  issued,  fees  would  have 
to  be  paid  to  the  Treasury  and  the  Court  officials, 
and  a  lot  of  money  spent  and  added  to  the  debt 
before  imprisonment  followed.  Still  the  rough-and- 
ready  methods  of  the  earlier  centuries  were  certainly 
cheaper,  and  the  result  was  much  the  same.  For  we 
read  that,  though  the  fellow-servant  pleaded  in  the 
same  formula,  "  Have  patience  with  me,  and  I  will 
pay  thee,"  the  creditor  of  the  hundred  pence  stood 

25 


THE   LAW  AND  THE  POOR 

firm  for  his  rights  and  cast  his  fellow  servant  into 
prison  till  he  should  pay  his  due. 

And  if  this  had  been  a  repertory  drama  and  not 
a  parable,  the  curtain  had  fallen  on  that  scene  and 
one  would  have  come  away  depressed  with  the 
abjectness  of  human  nature  and  with  a  cold  feeling 
that  the  world  was  a  drab  uncomfortable  place. 
But  the  ancient  dramatic  stories  always  have  a 
happy  ending.  There  is  more  of  the  spirit  of  the 
old  Adelphi  than  of  the  Gaiety  Theatre,  Manchester, 
about  the  parables.  The  lord  hears  of  his  servant's 
scurvy  behaviour  and,  to  the  delight  of  all  sane  men 
of  child-like  and  simple  faith,  the  wicked  servant  is 
delivered  to  the  tormentors  till  he  shall  pay  all  that 
was  due. 

I  confess  that  my  legal  mind  has  been  haunted 
with  the  thought  that,  the  lord  having  forgiven  the 
servant  his  debt,  it  was  rathei  a  strong  order  for 
him  to  go  back  on  that  forgiveness.  Doubtless 
there  was  no  consideration  for  the  forgiveness,  it 
was  nudum  pactum,  or  there  may  have  been  an 
implied  contract  that  the  servant  should  do  unto 
others  as  he  had  been  done  by,  but  I  rather  expect 
the  lord  and  his  advisers  only  considered  the  justice 
of  their  act  rather  than  its  technical  legal  accuracy. 
But  one  thing  we  can  rejoice  in.  There  is  the 
dramatic  story,  and  no  one  can  construe  it  into 
approval  of  any  form  of  imprisonment  for  debt. 

I  know  that  many  who  do  not  regard  the  Bible 
as  an  authority  will  not  be  troubled  about  this 
testimony  ;  probably  many  more  who  do  read  the 
Scriptures  for  guidance  will  be  pained  that  anyone 

26 


THE  ANCIENTS  AND  THE  DEBTOR 

should  make  use  of  holy  words  to  upset  a  system 
that  they  find  so  useful  in  the  commercial  weekdays 
of  life.  Moreover,  some  will  shake  their  heads  and 
remind  me  that  "  the  devil  can  cite  Scripture  for 
his  purpose."  That  is  true  enough.  But  it  will 
be  a  very  clever  devil  who  can  cite  any  Scripture 
in  support  of  section  5  of  the  Debtors  Act,  1869. 

And  I  will  pass  away  from  scriptural  precedents 
to  others  which,  though  to  me  they  possess  a  less 
compelling  sanction,  will  perhaps  have  more  weight 
with  men  of  the  world.  In  the  history  of  ancient 
Greece  the  debtor  played  an  important  part.  Let 
me  remind  you  what  the  Archon  did. 

The  particular  Archon  1  refer  to  is  Solon. 

Solon  knew  all  about  imprisonment  for  debt,  and 
his  evidence  on  the  subject  is  most  convincing.  It 
is  well  to  remember,  too,  that  Solon  was  a  business 
man — I  have  this  from  Grote,  who  got  it,  I  fancy, 
from  Plutarch.  Exekestides,  Solon's  father,  a 
gentleman  of  the  purest  heroic  blood,  "  diminished 
his  substance  by  prodigality,"  and  young  Solon  had 
to  go  into  business  ;  in  modern  phrase,  he  "  went 
on  the  road,"  and  saw  a  lot  of  the  world  in  Greece 
and  Asia.  I  mention  this  because  I  am  always  told 
that  if  I  knew  anything  of  business  I  should  under- 
stand the  necessity  of  imprisonment  for  debt.  Solon 
was  emphatically  a  business  man.  Solon  was  also 
a  poet,  which  perhaps  was  his  best  asset  as  a  social 
reformer,  but  he  was  no  sentimentalist  if,  as  some 
say,  when  he  was  a  general  attacking  a  rebellious 
city  he  ordered  the  wells  to  be  poisoned  to  put  an 
end  to  the  strife. 

27 


THE   LAW   AND   THE   POOR 

Whpn  Solon  in  a  time  of  grand  social  upheaval 
was  made  Archon,  he  found  the  poorer  population, 
including  particularly  the  cultivating  tenants, 
weighed  down  by  debts  and  driven  in  large  numbers 
out  of  freedom  and  into  slavery.  Let  me  set  down 
the  condition  of  things  in  the  careful  words  of  Grote 
lest  I  appear  to  exaggerate. 

"  All  the  calamitous  effects  were  here  seen  of 
the  old  harsh  law  of  debtor  and  creditor — once 
prevalent  in  Greece,  Italy,  Asia,  and  a  large  portion 
of  the  world — combined  with  the  recognition  of 
slavery  as  a  legitimate  status,  and  of  the  right  of 
one  man  to  sell  himself  as  well  as  that  of  another 
man  to  buy  him.  Every  debtor  unable  to  fulfil 
his  contract  was  liable  to  be  adjudged  as  the  slave 
of  his  creditor,  until  he  could  find  means  either  of 
paying  it  or  working  it  out ;  and  not  only  he 
himself,  but  his  minor  sons  and  unmarried  daughters 
and  sisters  also,  whom  the  law  gave  him  the  power 
of  selling.  The  poor  man  thus  borrowed  upon  the 
security  of  his  body  (to  translate  literally  the  Greek 
phrase)  and  upon  that  of  the  persons  in  his  family." 

The  words  I  have  italicised  are  interesting  as 
exactly  defining  the  principle  of  all  imprisonment  for 
debt.  A  wage  earner  to-day  who  runs  up  bills  with 
tally-men  and  grocers  obtains  credit  upon  the 
security  of  his  body. 

I  have  heard  from  the  wife  of  a  poor  debtor  an  apt 
but  unconscious  translation  of  the  Latin  maxim,  Si 
non  habet  in  aere  luat  in  corpore.  Her  allegation  was 
that  a  tally-man  had  said  to  her  husband,  "  If  I  canna 
'ave  yer  brass  I'll  tek  yer  body."     In  the  north 

28 


THE  ANCIENTS  AND  THE  DEBTOR 

country,  among  the  more  old-fashioned  bailiffs  and 
their  victims,  warrants  of  arrest  are  commonly 
known  as  "  body  warrants."  No  doubt  the  im- 
prisonment of  to-day  is  different  in  degree  from  the 
slavery  of  debtors  in  Greece  five  hundred  years 
before  Christ,  but  it  is  absolutely  the  same  in  prin- 
ciple, founded  on  the  same  idea,  and  worthy  to  be 
maintained  or  abolished  by  the  citizens  of  this  State 
for  the  same  reasons  that  were  found  good  by  the 
citizens  of  Athens. 

Thus  it  is  that  it  is  worth  while  finding  out  what 
Solon  thought  about  it.  I  wish  Solon's  tract, 
"  What  the  Archon  Saw,"  had  come  down  to  us,  and 
we  could  have  quoted  actual  instances  of  the  wicked- 
ness of  imprisonment  for  debt  in  his  day,  but  at 
least  we  know  what  he  thought  of  it,  and,  what  is 
really  important  to  us,  what  he  did.  Solon  had  a 
pretty  wit  in  titles.  He  called  his  bill  Seisachtheia,  or 
the  shaking  off  of  burdens.  The  relief  which  it 
afforded  was  complete  and  immediate.  It  cancelled 
at  once  all  those  contracts  in  which  the  debtor  had 
borrowed  on  the  security  of  his  person  or  his  land  ;  it 
forbade  all  future  loans  or  contracts  in  which  the 
person  of  the  debtor  was  pledged  as  security  ;  it 
deprived  the  creditor  in  future  of  all  power  to  imprison 
or  enslave  or  extort  work  from  his  debtor,  and  con- 
fined him  to  an  effective  judgment  at  law,  authorising 
the  seizure  of  the  property  of  the  latter. 

This  was  indeed  a  shaking  off  of  burdens.  For 
here  we  find,  not  only  was  imprisonment  for  debt 
abolished  lock,  stock  and  barrel,  but  a  law  enacted 
protecting  the  land  of  the   cultivator  from  being 

29 


THE   LAW  AND  THE   POOR 

seized  for  debt.  This  is  akin  to  what  in  some  of  our 
colonies  is  called  a  homestead  law,  and  I  have 
always  contended  that  in  the  interests  of  the  State 
the  few  sticks  of  furniture  which  a  poor  man  and  his 
wife  and  children  always  call  "  the  home  "  should  be 
protected  from  arrest  for  debt,  just  as  the  bread- 
winner's body  should  be  exempt  from  imprisonment. 
I  could  have  got  along  with  Solon. 

And  when  one  is  told  the  old  tale  that  continues 
to  be  put  forward  by  those  who  wish  to  retain  im- 
prisonment for  debt — that  the  workman  will  starve 
for  want  of  necessary  credit  and  that  trade  will 
stagnate  owing  to  timid  creditors  refusing  to  trade 
— let  us  remember  with  pleasure  that  that  was  not 
what  the  Archon  saw  as  a  result  of  his  beneficial 
measures.  On  the  contrary,  the  testimony  is  over- 
whelming that  there  grew  up  a  higher  and  increasing 
respect  for  the  sanctity  of  contracts.  The  system 
of  credit-giving,  and  especially  of  moneylending, 
assumed  a  more  beneficial  character,  and  "  the  old 
noxious  contracts,  mere  snares  for  the  liberty  of  a 
poor  free  man  and  his  children  " — the  flat-traps  of 
to-day — disappeared.  What  happened  was  what 
will  happen  here  when  we  abolish  this  degrading 
system  of  giving  credit  on  the  sanction  of  body 
warrants.  What  happened  in  Athens  was  that, 
although  there  were  some  fraudulent  debtors,  the 
public  sentiment  became  strongly  in  favour  of 
honesty,  and  it  is  agreed  that  the  prophecies  of 
Solon's  failure  were  not  made  good,  and  "  that  a  loan 
of  money  at  Athens  was  quite  as  secure  as  it  ever  was 
at  any  time  or  place  of  the  ancient  world."     Further- 

30 


THE  ANCIENTS  AND  THE  DEBTOR 

more,  it  is  acknowledged  by  the  better  authorities 
that  what  I  expect  and  believe  will  happen  in  the 
mean  streets  of  England  when  imprisonment  for  debt 
is  abolished,  actually  did  happen  in  Athens,  and,  to 
use  Grote's  words,  "  the  prohibition  of  all  contracts 
on  the  security  of  the  body  was  itself  sufficient  to 
produce  a  vast  improvement  in  the  character  and 
conditions  of  the  poorer  population." 

Of  course,  I  am  not  putting  forward  "  What  the 
Archon  Did  "  as  an  example  to  the  Archons  who 
Didn't  of  to-day.  The  theory  of  evolution  teaches 
us  that  in  two  thousand  years  the  Solon  type  must 
have  improved,  and  that  the  Solon  that  we  see  in 
the  latter-day  armchair  of  State  must  be  a  far,  far 
better  thing  than  anything  that  obtained  in  Ancient 
Greece.  Possibly,  the  world  having  no  use  at  all  for 
Solons,  the  type  is  extinct.  Be  that  as  it  may,  I 
am  more  than  ever  puzzled  since  I  have  studied  the 
records  of  What  the  Archon  Did.  If  the  world  had 
got  so  far  in  the  question  of  imprisonment  for  debt 
five  hundred  years  before  Christ,  why  are  we  where 
we  are  now  nineteen  hundred  years  since  the  Master 
set  before  us  the  true  doctrine  of  forgiveness  of  debts  ? 

The  Roman  laws  against  the  debtor  upon  which  we 
have  ultimately  modelled  our  own  were  equally 
harsh  and  would  nearly  satisfy  the  moneylender  or 
tally-man  of  any  age.  Upon  notice,  a  debtor  had 
thirty  days  in  which  to  discharge  his  debt.  If  he 
did  not  do  so  his  creditor  carried  him  off  in  chains. 
Note,  however,  that  he  was  not  a  slave,  but  his  credi- 
tor had  to  keep  him  in  chains  for  another  sixty  days, 
during  which  time  he  had  to  bring  the  debtor  out  on 

31 


THE   LAW   AND   THE   POOR 

three  successive  market  days  to  give  his  friends  an 
opportunity  of  paying  up  and  releasing  him.  The 
creditor  had  also  to  provide  the  debtor  with  a  pound 
of  bread  a  day.  In  these  socialist  days  we  take  that 
burden  off  the  creditor's  shoulder  and  a  generous 
State  feeds  the  imprisoned  debtor  at  the  cost  of  the 
community.  On  the  third  market  day,  if  the 
debtor's  friends  were  still  backward  in  coming  for- 
ward, the  debtor  was  killed  and  thrown  into  the 
Tiber,  or  his  body  was  divided  among  his  creditors, 
which  was  the  only  dividend  they  received.  If 
there  was  any  market  for  him  he  was  sold  into  slavery. 
It  seems  that  in  the  very  early  days  of  Ancient  Rome 
each  creditor  had  a  right  to  carve  his  pound  of  flesh 
from  oft  the  debtor.     Portia's  point  against  Shylock  : 

.     .     nor  cut  thou  less,  nor  more, 
But  just  a  pound  of  flesh  :     .     .     . 

was  foreseen  and  provided  for  in  the  drafting  of  the 
Twelve  Tables.  It  is  enacted  in  the  Third  Table  : 
"  After  the  third  market  day  the  creditors  may  cut 
their  several  portions  of  his  body  :  and  any  one  that 
cuts  more  or  less  than  his  just  share  shall  be  guilt- 
less." Unless,  therefore,  the  laws  of  Venice  amended 
or  repealed  the  Twelve  Tables,  Shylock's  case  seems 
to  have  been  wrongly  decided.  What  is  at  least 
curious  is  that  the  ancient  idea  of  debtor  and  creditor 
law  embodied  in  those  ancient  statutes  should  be  the 
foundation  of  one  of  the  most  popular  plays  in  the 
English  language. 

Some  good  people  have  found  a  difficulty  in 
understanding  Shylock's  outlook  on  life  and  cannot 
comprehend  why  a  creditor  should  enjoy  killing  a 

32 


THE  ANCIENTS  AND  THE  DEBTOR 

debtor.  But,  after  all,  it  is  equally  strange  why 
a  creditor  should  take  pleasure  in  imprisoning  a 
debtor.  Yet  to-day  thousands  of  debtors  go  to 
prison  because  they  have  not  means  to  pay  their 
creditors.  The  difference  between  killing  and  im- 
prisoning a  debtor  is  a  difference  in  degree  only.  The 
principle  is  the  same.  The  object  of  the  creditor 
is,  perhaps,  in  the  first  place,  to  get  repaid  his  debt ; 
when  he  finds  this  is  impossible  the  death  or  im- 
prisonment of  the  debtor  merely  satisfies  his  desire 
for  revenge.  The  ancient  Romans  were,  in  one  way, 
a  more  practical  people  than  ourselves,  for  they 
threw  the  costs  of  this  revenge  direct  upon  the 
creditor,  whereas  we  throw  it  upon  the  taxpayer. 
If  this  particular  impost  were  made  upon  me  in  any 
direct  manner  it  would  almost  persuade  me  to  be  a 
passive  resister. 

I  am  glad,  however,  to  remind  you  that  in  historical 
times  at  all  events  the  Romans  did  not  carry  out 
the  law  of  the  Twelve  Tables  to  its  uttermost  cruelty. 
The  popular  way  of  dealing  with  a  debtor  seems 
to  have  been  to  sell  him  into  slavery  and  then  to 
credit  him  in  your  ledger  with  the  price  he  fetched — 
less  the  out  of  pockets — much  as  we  do  to-day  when 
we  issue  execution  against  chattels.  In  later  years 
the  slavery  of  debtors  was  abolished  and  imprison- 
ment much  like  our  own  was  substituted,  but  the 
Romans  never  had  a  lawgiver  as  wise  and  powerful 
as  Solon  to  get  rid  of  imprisonment  for  debt 
altogether.  And  the  Roman  imprisonment  for  debt 
in  some  shape  or  other  runs  through  the  social 
systems  of  the  Middle  Ages,  being  harsh  in  one  place 

l.p.  33  D 


THE   LAW  AND   THE   POOR 

and  less  cruel  in  another,  and  mitigated  at  one  date 
and  aggravated  at  another.  Always  we  find  a 
feeling  among  the  more  thoughtful  of  mankind  that 
it  is  in  itself  a  harsh  and  cruel  system  and  a  desire 
among  at  least  a  few  to  help  the  victims  of  it  in  their 
distress. 

Fynes  Moryson,  who  was  in  Rome  in  1594,  tells 
us  of  a  practice  which  then  prevailed  in  the  Pope's 
State  which  might  be  introduced  into  Protestant 
England  to-day  in  a  lively  belief  that  it  would  be 
in  accordance  with  the  tenets  of  the  Christian  faith 
and  a  certain  hope  that  it  would  relieve  many  a  poor 
wretch  in  misery  and  despair.  "  If,"  he  writes, 
"  a  man  be  cast  into  prison  for  debt,  the  judges  after 
the  manner  visiting  frequently  those  prisons, 
finding  him  to  be  poor,  will  impose  upon  the  creditor 
a  mitigation  of  the  debt,  or  time  of  forbearance,  as 
they  judge  the  equity  of  the  case  to  require,  or  if 
by  good  witnesses  they  find  the  party  so  poor  as 
really  he  hath  not  wherewith  to  pay  his  debt  they 
will  accept  a  release  or  assignment  of  his  goods  to 
the  creditor  and  whether  he  consent  or  no  will  free 
the  debtor's  body  out  of  prison." 

At  all  periods  of  time  we  find  the  same  uneasiness 
in  the  minds  of  rulers  and  governors  about  keeping 
a  poor  man  in  prison  for  debt  when  he  cannot  pay. 
The  governors  of  English  gaols  will  tell  you  that 
90  per  cent,  of  the  debtors  lying  in  prison  to-day 
for  civil  debt,  rates,  maintenance  or  bastardy 
orders  and  small  fines  are  too  poor  to  pay.  Yet  here 
in  England  our  legislators  cannot  even  get  as  far 
as  the  Papal  State  of  the  sixteenth  century  in  an 

34 


THE  ANCIENTS  AND  THE  DEBTOR 

exercise  of  charity  to  the  poor  and  distressed. 
Pending  the  abolition  of  imprisonment  for  debt,  a 
Home  Office  visitation  with  power  to  release  the 
really  unfortunate  on  the  lines  of  the  practical 
experiment  which  Fynes  Moryson  wrote  home 
about  three  hundred  years  ago  would  be  something 
to  be  going  on  with. 

This,  however,  is  a  matter  which  is  concerned  with 
methods  of  reform.  But,  before  we  deal  with 
amendments  of  the  law,  it  is  necessary  to  trace 
clearly  and  accurately  the  evolution  of  imprison- 
ment for  debt  in  England,  in  order  that  we  may 
understand  how  and  why  it  exists  to-day  as  a  law 
that  can  only  be  put  in  force  against  the  poor. 


35  D2 


CHAPTER   III 

OF   IMPRISONMENT   FOR   DEBT   IN   ENGLAND 

Oh  let  me  pierce  the  secret  shade 
Where  dwells  the  venerable  maid  ! 
There  humbly  mark,  with  reverend  awe, 
The  guardian  of  Britannia's  law  ; 
Unfold  with  joy  her  sacred  page, 
The  united  boast  of  many  an  age  ; 
Where  mixed,  yet  uniform,  appears 
The  wisdom  of  a  thousand  years. 

Sir  William  Blackstone  : 
"  The  Lawyer's  Farewell  to  his  Muse." 

I  am  honestly  sorry  to  have  to  inflict  a  chapter  of 
legal  history  upon  anyone,  but  for  the  life  of  me  I  do 
not  see  how  the  imprisonment  for  debt  of  to-day  can 
be  intelligently  appreciated  until  one  knows  some- 
thing of  its  lineage.  To  begin  with,  it  may  be  news 
to  some  folk  to  learn  that  in  the  merry  days  of 
Henry  III.  there  was  no  imprisonment  for  debt  at 
all.  If  Godfrey  the  garlic  seller  or  Hogg  the  needier 
owed  Rose  of  the  small  shop  a  tally  for  weekly  pur- 
chases and  would  not  pay,  Rose,  poor  woman,  could 
not  get  an  order  to  send  them  to  gaol.  Yet  there  is 
no  evidence  that  trade  was  thereby  injured,  or  that 
there  was  any  difficulty  in  Rose  regulating  her 
credit-giving,  or  in  Godfrey  and  Hogg  and  the  rest 
obtaining  as  much  credit  as  they  deserved.     The 

3° 


IMPRISONMENT   FOR   DEBT   IN    ENGLAND 

first  thing  to  remember  is  that  England  at  one  period 
had  no  use  for  imprisonment  for  debt. 

It  occurs  to  me  that,  if  I  can  persuade  the  man  in 
the  street  to  understand  how  imprisonment  for  debt 
began  and  continued  until  it  became  a  great  public 
scandal,  and  show  how  in  the  last  hundred  years 
little  by  little  its  evil  influence  and  extent  have  been 
abated  with  good  results,  we  shall  be  making  great 
strides  towards  the  restoration  of  that  liberty  in 
England  which  in  the  matter  of  debt  was  the 
citizen's  privilege  in  the  days  of  Henry  III. 

But  the  reason  for  the  absence  of  imprisonment 
for  debt  in  these  early  feudal  days  is  not  so  satis- 
factory to  modern  ears  as  one  could  wish.  Lord 
Chief  Baron  Gilbert,  that  crisp  and  accurate  lawyer 
of  the  eighteenth  century,  puts  it  very  clearly  when 
he  says  :  "  But  there  was  no  Capias  for  the  Debt  or 
Damages  of  a  Common  Person,  because  the  party 
having  trusted  him  only  with  personal  Things  his 
remedy  was  only  on  the  personal  Estate,  and  the 
King  had  the  Interest  in  the  Body  of  his  subject  ; 
and  the  Lord  in  his  Feudatory  or  Vassal  to  be  called 
out  to  War  or  to  labour  for  him  ;  and  therefore  none 
but  the  King  could  imprison  him." 

And  this  seems  clear,  that  the  reason  a  creditor 
could  not  imprison  a  debtor  was  because  in  those 
days  a  debtor  had  only  a  limited  interest  in  his  own 
body.  The  fighting  part  of  his  body  belonged  to 
the  king,  the  labouring  part  of  his  body  belonged  to 
his  lord,  and  the  king  and  the  lord  were  not  going  to 
have  their  rights  and  property  in  his  body  interfered 
with  because  the  subject  and  vassal  had  been  foolish 

37 


THE   LAW  AND   THE   POOR 

enough  to  run  into  debt  with  another  subject  and 
vassal  who  wanted  his  money. 

You  will,  indeed,  find  that  the  whole  history  of  the 
law  and  the  poor  seems  to  be  a  long  struggling  of  the 
poor  out  of  slavery  and  serfdom  where  they  had  a 
certain  guaranteed  amount  of  food  and  protection 
from  their  masters,  similar  in  nature  to  that  given 
to  the  ox  or  the  ass  or  anything  that  was  his,  into  a 
state  of  freedom,  so-called,  in  which  they  had  given 
up  their  rights  to  food  and  protection  without  getting 
any  certain  rights  of  wages  or  the  equivalent  of 
wages  in  return.  We  are  in  the  middle  of  adjusting 
these  things  to-day,  and  the  story  of  imprisonment 
for  debt,  and  why  it  is  retained  at  the  present  only 
for  poor  people,  is  a  page  in  the  curious  English 
history  of  social  progress. 

As  long  as  the  debtor  was  a  vassal  having  certain 
duties  to  perform  for  the  lord  of  the  manor  his  lord- 
ship thought  him  as  much  worth  preserving  as  the 
game  or  venison  within  the  curtilage  of  his  park.  It 
was  for  this  reason  you  could  not  take  his  body  in 
execution.  As  you  may  know,  when  you  obtain  a 
judgment  in  a  court  of  law  the  next  thing  to  do  is  to 
proceed  to  execution ;  that  is  to  say,  the  judge  having 
given  you  judgment  a  writ  is  granted  to  you  whereby 
you  get  the  sheriff  to  take  your  part  and  seize  for 
you  either  the  goods  or  body  of  your  opponent.  The 
history  of  these  ancient  writs  is  full  of  amusing  folk- 
lore for  those  who  love  such  things,  and  we  still  call 
them  by  their  old  dog-Latin  names,  not  for  any 
scientific  purpose,  but  for  much  the  same  reason  that 
the  doctors  write  their  prescriptions  in  hieroglyphics 

33 


IMPRISONMENT   FOR   DEBT   IN   ENGLAND 

and  priests  mumble  Latin  or  English — but  always 
mumble — in  a  cathedral.  It  is  the  essence  of  a  pro- 
fession that  it  should  be  mysterious  and  incompre- 
hensible, otherwise  the  common  herd  would  not 
respect  it  and  pay  its  fees. 

And,  prior  to  Henry  III.,  if  you  got  a  judgment 
against  your  neighbour  for  money  owing  by  him  to 
you,  your  remedies  of  execution  were  these.  By  a 
writ  of  fieri  facias  the  sheriff  could  be  commanded  to 
seize  the  goods  and  chattels  of  the  debtor  in  satis 
faction  of  the  debt.  This  dear  old  writ,  the  fieri 
facias,  affectionately  alluded  to  as  the  ft.  fa.  by 
attorneys,  bailiffs  and  others  who  have  the  handling 
of  the  fellow,  is  still  with  us.  I  agree  that  without 
him  the  delivery  of  judgments  in  courts  of  law 
would  be  mainly  of  academic  and  rhetorical  interest. 
For  as  Gilbert — not  William  Schwenck,  but  Sir 
Geoffrey  the  Chief  Baron — puts  it,  if  a  party  trusts 
a  man  with  personal  things,  then  his  remedy  should 
be  against  the  personal  things  of  the  debtor,  and  this 
seems  a  principle  of  common  law  and  common  sense 
as  just  as  it  is  homeopathic.  As  our  latter-day 
Gilbert  would  have  put  it,  "  the  punishment  fits 
the  crime." 

But  when  you  come  to  our  other  writ,  the  capias 
satisfaciendum,  or  "  ca.  sa."  as  it  is  written  in  the 
absurd  legal  shorthand  of  the  day,  or  "  body 
warrant  "  as  it  is  still  termed  with  brutal  accuracy 
in  Lancashire,  then  you  will  find  that  in  old  days 
different  considerations  prevailed.  You  were  not 
allowed  to  seize  a  man's  body  for  debt,  but  only  his 
goods.     And  I  am  glad  to  find  myself  setting  forth 

39 


THE   LAW  AND  THE  POOR 

high  Tory  doctrine  and  asking  my  fellow  citizens  to 
return  to  the  earliest  common  law  of  the  land,  for 
this  seems  clear  that  originally,  unless  the  action  was 
for  trespass  vi  et  armis,  which  was  in  the  nature  of  a 
criminal  matter,  there  was  no  remedy  against  the 
body  of  the  defendant.  The  ca.  sa.  whereby  the 
sheriff  was  ordered  to  seize  the  body  of  the  defendant 
in  execution  could  not  issue  at  the  instance  of  a 
successful  plaintiff  at  common  law.  In  other  words 
there  was  no  imprisonment  for  debt. 

Our  forefathers  recognised  what  we  seem  to  have 
partially  lost  sight  of,  that  as  credit  could  only  be 
given  commercially  to  a  man  with  goods,  it  was  fair 
and  just  that  his  goods  should  be  seized  if  he  did 
not  carry  out  his  contract.  But  for  reasons  of  their 
own — no  longer  sound  as  reasons  to-day,  it  is  true — 
they  refused  to  allow  a  man  to  mortgage  his  body 
for  goods.  Body  warrants  only  issued  against 
criminals  or  in  actions  of  a  semi-criminal  character. 
It  will  be  reassuring  to  those  conservative  minds 
who  fear  the  abolition  of  imprisonment  for  debt  to 
remember  that  there  was  a  time  in  England  when 
it  did  not  exist,  and  that  if  we  abolish  it  to-day  we 
are  working  on  old-fashioned  and  constitutional 
lines.  Imprisonment  for  debt  has  not  the  sanction 
of  antiquity,  and  a  desire  to  sweep  it  away  must  not 
be  put  down  to  the  wild  and  wicked  desires  of  a 
political  futurist  architect,  but  rather  to  the  pious 
hopes  of  one  who  is  in  deep  sympathy  with  the  best 
features  of  the  Norman  and  Early  English  social 
institutions  of  his  native  land. 

To  tell  the  long  story  of  the  statutory  evolution 
40 


IMPRISONMENT  FOR  DEBT  IN  ENGLAND 

of  imprisonment  for  debt  from  the  Statute  of 
Marlbridge,  52  Henry  III.  c.  23,  to  the  Act  for  the 
Abolition  of  Imprisonment  for  Debt — so-called — of 
1869,  would  be  out  of  place  here.  It  is  enough  to 
know  that  little  by  little  the  principle  of  the  right 
of  one  man  to  seize  the  body  of  another  in  an 
execution  for  debt  became  recognised  by  statutes 
and  by  custom  until  the  wrongs  it  caused  reached 
such  a  scandalous  pitch  in  the  eighteenth  century 
that  some  reform  of  it  became  inevitable. 

The  more  modern  contests  over  its  partial  mitiga- 
tion from  time  to  time  throw  a  direct  light  on  the 
differences  of  opinion  upon  the  matter  of  to-day. 
It  will  be  seen  that  there  have  always  been  two 
schools  of  thought  among  politicians.  One  school 
was  clear,  that  to  tamper  with  imprisonment  meant 
ruin  to  trade  ;  the  other  held — what  I  take  to  be 
the  true  gospel — that  a  man  ought  not  to  be  allowed 
to  obtain  credit  on  the  security  of  his  body. 

Until  the  end  of  the  eighteenth  century  the 
harshness  and  cruelty  of  imprisonment  for  debt 
recei  v'ed  little  attention.  The  history  of  the  debtors' 
prisons,  the  Fleet,  the  King's  Bench,  the  Marshalsea 
and  the  City  Compters,  are  pages  of  the  story  of  our 
law  that  no  one  can  read  to-day  without  shame. 
Yet  the  Howards  and  Frys  who  called  attention  to 
the  facts  met  with  just  as  little  encouragement  and 
attention  from  the  rulers  of  the  country  as  anyone 
does  to-day  who  desires  to  put  the  coping  stones  on 
the  completed  work,  the  foundations  of  which  were 
laid  by  these  great  reformers. 

The  extraordinary  results  that  took  place  through 

4i 


THE   LAW  AND   THE   POOR 

imprisonment  for  debt  as  it  existed  in  the  eighteenth 
century  are  surely  beyond  parallel  in  any  legal 
system.  The  plays  and  fictions  of  the  time  are  full 
of  instances.  You  remember  when  Roderick 
Random  finds  himself  in  the  Marshalsea  he  meets 
with  his  old  friend  Jackson  and  asks  him  about  his 
amour  with  the  lady  of  fortune  :  "  You  must  know," 
replies  Jackson,  "  that  a  few  days  after  our  adventure 
I  found  means  to  be  married  to  that  same  fine  lady 
you  speak  of  and  passed  the  night  with  her  at  her 
lodgings,  so  much  to  her  satisfaction,  that  early  in 
the  morning,  after  a  good  deal  of  snivelling  and 
sobbing,  she  owned  that  far  from  being  an  heiress 
of  great  fortune  she  was  no  other  than  a  common 
woman  of  the  town  who  had  decoyed  me  into 
matrimony  in  order  to  enjoy  the  privilege  of  a 
femme  couverte,  and  that  unless  I  made  my  escape 
immediately  1  should  be  arrested  for  a  debt  of  her 
contracting  by  bailiffs  employed  and  instructed  for 
that  purpose."  Upon  hearing  this  poor  Jackson 
escapes  and  serves  for  a  few  months  as  surgeon  of 
a  sloop,  but,  on  his  return,  is  arrested  for  a  debt  of 
his  wife's  and  comes  to  live  at  the  Marshalsea  on 
half  pay. 

Nor  is  there  anything  wildly  improbable  in  the 
story.  Smollett  had  been  in  a  debtor's  prison 
himself,  and  very  likely  had  heard  the  story  at 
first  hand,  for  many  equally  extraordinary  stories 
in  real  life  are  well  authenticated. 

There  was  the  strange  case  of  the  lady  who 
married  a  man  under  sentence  of  death  to  get  rid 
of  her  debts,  and  was  greatly  upset  when  her  husband 

42 


IMPRISONMENT  FOR  DEBT  IN  ENGLAND 

was  respited  and  sent  to  the  colonies.  But  perhaps 
one  of  the  most  curious  stories  is  that  of  the  dear 
old  blind  spinster  of  Clerkenwell,  with  a  fortune  of 
a  thousand  pounds,  who  took  a  deep  interest  in  the 
career  of  an  industrious  shoemaker's  apprentice  and 
made  him  presents  of  clothes  and  a  watch  and  lent 
him  ten  pounds.  When  he  was  out  of  his  articles 
and  was  about  to  go  home  to  Leicestershire  and 
settle  down  there,  he  was  arrested  for  the  loan  and 
the  attorney's  bill  of  costs  and  the  "  garnish  "  at 
the  lock-up  to  which  he  was  taken.  After  a  few 
days  the  kind-hearted  lady  visited  him  and  offered 
him  three  alternatives.  He  might  pay  the  money  ; 
go  to  the  debtor's  prison  for  the  rest  of  his  life  ;  or 
marry  her.  He  chose  the  last  alternative  and  was 
kept  in  the  sponging  house  until  his  wedding  day. 

These  stories  are  but  a  sample  of  the  iniquities  that 
were  going  on  in  that  day,  and  yet  then,  as  now,  the 
feeling  of  legislators  and  business  men  seems  to  have 
been  that  it  was  dangerous  to  trade  and  business  to 
sweep  this  horrible  system  away,  so  blind  are  people 
to  the  wrongs  they  see  every  day,  so  dull  are  ears 
to  cries  of  pain  and  distress  that  are  continuous  and 
never  cease.  It  would  seem  as  though  the  con- 
science of  mankind  can  only  be  startled  into  action 
by  some  catastrophe,  some  tragedy  obviously 
brought  about  by  bad  government  and  bad  laws, 
and  not  until  then  will  it  translate  its  knowledge  of 
evil  into  demand  for  reform. 

The  tragedies  of  imprisonment  for  debt  occurred, 
but  they  took  place  behind  closed  doors  and  the 
world  only  heard  of   them  by   slow  degrees.     At 

43 


THE  LAW  AND   THE   POOR 

length,  however,  the  constant  repetition  of  the 
miseries  of  the  poor  debtors  who  languished  in 
prison,  wasting  their  lives  and  eating  out  their 
hearts  in  despair,  began  slowly  to  convince  the  man 
in  the  street  that  there  really  was  something  wrong 
with  the  world  and  that  the  cup  of  human  misery 
of  some  of  their  fellow  creatures  was  slopping  over 
into  the  saucer  of  despair.  Timid  reformers  began 
to  think  something  might  be  done.  The  arguments 
then,  as  now,  were  all  one  way,  but  then,  as  now, 
there  was  no  one  to  listen  to  them.  Good  men  had 
raised  their  voices  to  point  out  the  wrong-doing  that 
was  going  on,  and  the  unnecessary  wretchedness  that 
was  being  caused,  but  nothing  much  came  of  it. 
There  were  a  few  desultory  and  ineffective  move- 
ments towards  discharging  poor  debtors,  but  the 
matter  did  not  greatly  interest  mankind,  and  there 
seemed  to  the  eighteenth  century  mind  no  very  clear 
reason  why  a  debtor  once  in  prison  for  debt  should 
ever  be  released.  To-day,  in  the  same  way,  it  is 
difficult  to  persuade  the  average  citizen  that  there 
is  any  injustice  in  a  debtor  being  sent  to  prison  for 
debt.  The  attitude  of  mind  about  the  thing  is  not 
greatly  altered,  though  happily  the  amount  of 
injustice  and  wrong-doing  has  been  lessened. 

It  was  not,  indeed,  until  the  beginning  of  the  reign 
of  Queen  Victoria,  a  time  of  great  hope  for  the  poor 
and  distressed,  a  period  which  has  not  inaptly  been 
called  "  the  springtime  of  social  reform,"  that  any 
practical  movement  was  made.  I  myself  keep 
March  31st  as  the  birthday  of  the  movement  for  the 
abolition  of  imprisonment  for  debt,  but  anyway  it  is 

44 


IMPRISONMENT  FOR  DEBT  IN  ENGLAND 

a  red-letter  day  in  the  history  of  English  literature 
and  worthy  of  great  honour.  For  on  that  day,  in 
the  year  1836,  the  first  number  of  "  Pickwick," 
appeared  and  there  is  no  doubt  that  the  account  of 
the  Fleet  prison  in  that  volume  has  made  it  the 
popular  text-book  of  legal  reform  in  these  matters. 
If  "  Pickwick  "  in  1836  was  not  the  causa  causans  of 
Lord  Cottenham's  Bill  to  amend  the  law  of  insolvency 
which  was  introduced  in  December,  1837,  there  is  no 
doubt  that  Dickens'  stories  of  the  cruelty  of  imprison- 
ment for  debt  supplied  the  motive  power  necessary 
to  pass  it  by  rousing  the  public  conscience  to  insist 
upon  something  being  done. 

The  point  of  particular  reform  aimed  at  by  the 
Bill  was  to  abolish  what  was  called  arrest  on  mesne 
process.  It  is  an  absurd  term,  and  it  was  a  still  more 
absurd  thing.  The  wonder  is  that  it  had  survived  as 
long  as  it  did.  Mesne  process,  translated  into  Eng- 
lish, means  middle  process,  and  the  idea  was  to  lock 
a  defendant  up  in  the  middle  of  the  trial  and  keep 
him  there  in  case  it  turned  out  at  the  end  of  the  pro- 
ceedings that  he  owed  the  money.  It  was  as  popu- 
lar with  the  sharks  of  the  eighteenth  century  as  the 
present  imprisonment  is  with  the  moneylenders  and 
tally-men  of  to-day.  Any  person  who  would  make 
an  affidavit  that  another  owed  him  twenty  pounds 
or  more  could  lock  him  up  pending  the  trial  and, 
unless  the  victim  could  find  the  money  and  pay  it 
into  Court,  he  remained  in  the  sponging  house  until 
the  trial  came  on.  Harry  Warrington  was  served  so, 
if  you  remember.  Two  gentlemen  came  from  over 
the  way,  "  one  of  them  takes  a  strip  of  paper  out  of 

45 


THE   LAW  AND  THE  POOR 

his  pocket  and,  putting  his  hand  upon  Mr.  Warring- 
ton's shoulder,  declares  him  his  prisoner.  A  hackney 
coach  is  called  and  poor  Harry  goes  to  sleep  in 
Chancery  Lane."  Certainly  Harry  owed  the  money 
and  had  been  reckless  and  extravagant  enough,  but 
even  then  the  method  of  arrest  strikes  us  to-day  as  a 
little  high-handed.  Nor  was  it  always  made  use  of 
with  honesty.  To  bold  rascals  it  was  a  very  perfect 
machine  for  the  wickedest  blackmail.  An  affidavit 
of  debt — and  eighteenth  century  affidavits  were  no 
nearer  the  truth  than  those  of  the  present  century — 
was  all  that  was  required,  and  if  in  the  end  the  affi- 
davit was  found  to  be  false,  the  only  remedy  was  to 
prosecute  the  swearer  of  it — if  you  could  find  him. 
A  case  that  Lord  Denman  mentioned  in  the  debates 
in  1837  created  a  good  deal  of  uneasiness  in  the 
public  mind.  A  certain  Portuguese  nobleman,  the 
Duke  de  Cadaval,  on  landing  at  Falmouth,  or  when 
he  was  residing  at  Plymouth,  was  arrested  on  a  pre- 
tended debt,  thrown  into  prison,  and  obliged  to  pay  a 
large  sum  of  money  to  procure  his  release.  He  after- 
wards recovered  in  an  action  for  malicious  arrest 
heavy  damages,  but  he  never  received  a  penny  of 
them,  nor  is  there  any  record  that  the  false  witnesses 
were  punished  for  perjury.  There  are  many  stories 
of  this  kind,  and  it  was  an  obvious  result  of  the 
system  of  arrest  on  mesne  process.  One  would  have 
thought  that  there  would  have  been  no  difficulty 
about  abolishing  a  legal  machinery  that  brought 
about  such  injustice,  but,  in  truth  and  fact,  it  was 
quite  otherwise.  Indeed,  the  people  who  wanted  to 
abolish  the  excellent  and  business-like  system  were 

46 


IMPRISONMENT   FOR   DEBT   IN   ENGLAND 

regarded  as  very  pestilent  and  turbulent  busy-bodies 
by  the  average  citizen. 

Another  incident  of  imprisonment  for  debt  at  this 
date  was  that  if  a  creditor  preferred  to  issue  a  ca.  sa. 
to  a  fi.  fa.  and  took  the  body  of  the  debtor  in  pre- 
ference to  the  property  of  the  debtor,  he  thereby 
discharged  the  debtor.  If,  therefore,  the  debtor 
preferred  imprisonment  to  paying  his  debts,  the  law 
afforded  the  creditor  no  other  remedy.  There  were 
instances  of  debtors  remaining  in  prison  for  over 
twenty  years  well  able  to  pay  their  debts,  but  pre- 
ferring to  live  in  luxury  within  the  rules  of  the  prison. 
Re  Pickwick  is  perhaps  the  popular  leading  case  on 
this  point.  But  whilst  wc  remember  with  pleasure 
how  the  law  enabled  our  dear  friend  to  outwit  for  a 
time  those  wily  attorneys  Dodson  and  Fogg,  do  not 
let  us  forget  the  terrible  sights  he  saw  in  the  Fleet. 

The  Chancery  prisoner,  the  fortunate  legatee 
whose  lawyers  had  had  the  thousand  pounds  legacy, 
and  who  was  in  the  Fleet,  mending  shoes  for  twenty 
years  because  the  loom  of  the  law  had  woven  a 
shroud  of  costs  round  him  and  buried  him  in  prison 
— he  was  no  fiction.  His  heart  was  broken  when  his 
child  died  and  he  could  not  kiss  him  in  his  coffin. 
There  he  remained  living  a  solitary  lingering  death, 
lonely  amid  the  noise  and  riot  of  the  Fleet,  until  God 
gave  him  his  discharge.  This  and  many  another 
case  was  before  My  Lords  and  known  to  the 
intelligent  Commons  when  the  question  of  the 
abolition  of  arrest  on  mesne  process  came  up  for 
discussion  in  1837. 

It  is  to  Lord  Cottenham,  as  I  have  said,  that  we 

47 


THE   LAW  AND  THE   POOR 

owe  the  statute  which,  to  use  Mr.  Atlay's  phrase, 
"  abolished  the  bane  of  Mr.  Micawber's  existence, 
imprisonment  for  debt  on  mesne  process."  Nor 
must  it  be  thought  that  it  was  done  without  a 
struggle.  Lord  Lyndhurst  said,  and  no  doubt  truly, 
that,  judging  from  the  petitions,  he  should  be  within 
the  truth  in  saying  that  the  Bill  was  very  unpopular. 
The  petitions  were  at  least  ten  to  one  against  the 
Bill.  There  was  no  more  enthusiasm  about  mitigat- 
ing imprisonment  for  debt  then  than  there  is  to-day. 
The  history  of  these  things  is  always  the  same  ;  the 
traders  objected  to  the  abolition  of  imprisonment  for 
debt,  the  newspaper  proprietors  strenuously  opposed 
the  reduction  of  the  Stamp  Acts,  the  doctors  fought 
against  national  insurance.  Yet,  when  the  horrible 
thing  is  done,  we  find  them  smugly  prospering  on  the 
reform. 

Lord  Brougham,  who  from  the  very  first  had  always 
held  instinctively  the  true  faith  in  these  matters, 
pointed  out  to  a  reluctant  House  how  credit  was 
imprudently  given  to  the  real  injury  of  the  customer 
who  is  induced  to  buy  what  he  cannot  pay  for,  and 
to  the  injury  of  those  who  do  pay  what  they  do  owe, 
but  who  pay  the  dearer  in  proportion  to  the  bad 
debts  which  the  tradesman  is  led  to  let  others  con- 
tract with  him.  Further,  he  emphasised  the  wrong 
done  by  clothing  an  insolvent  person  with  an 
appearance  of  credit  by  lending  him  more  goods 
which  serve  as  a  bait  or  decoy  to  others  that  have  not 
yet  trusted  him.  He  laid  down  the  principle  that 
debt  should  never  be  treated  as  a  crime  and  still  less 
as  a  crime  to  be  punished  at  the  sole  will  and  pleasure 

48 


IMPRISONMENT   FOR   DEBT  IN  ENGLAND 

of  the  creditor,  and  eloquently  called  upon  the  peers 
to  wipe  out  this  foul  stain  from  our  civil  code. 

Arrest  on  mesne  process  was  abolished,  not 
ungrudgingly  it  is  true,  but  it  came  to  an  end,  and 
a  commission  was  set  up  in  1839  to  inquire  and 
report  upon  the  whole  system  of  imprisonment  for 
debt.  This  commission  ultimately  reported  in 
favour  of  abolition.  In  1844  another  Bill  was 
introduced  to  distinguish  between  cases  where  it 
could  be  shown  that  the  debtor  was  an  innocent 
fool  and  not  a  culpable  contumacious  defrauder. 
It  was  not  of  much  avail  as  a  social  reform,  but  may 
be  fairly  described,  perhaps,  as  a  worthy  effort. 
The  brightest  reading  in  its  history  for  us  to-day  is 
the  debate  in  which  Lord  Brougham,  with  savage 
eloquence,  rubs  it  in — the  modern  slang  expresses 
Brougham's  method  so  accurately — and  jeers  at 
the  opponents  of  imprisonment  for  debt  now  that 
all  their  Cassandra  prophecies  over  the  abolition  of 
imprisonment  by  mesne  process  have  proved  them- 
selves to  be  worthless.  Abolition  of  this  system  had 
not  diminished  credit,  and  had  not  raised  any 
difficulty  in  citizens  obtaining  credit.  Then,  as  now, 
these  were  the  trade  arguments  against  reform 
solemnly  used  by  business  men,  officials  and  lawyers, 
and  though,  on  each  occasion  when  the  reform  has 
taken  place,  they  have  been  found  to  be  the  hollowest 
nonsense,  yet  they  are  repeated  to  the  reformers  of 
to-day  with  the  same  pompous  effrontery  with 
which  they  were  offered  to  Lord  Brougham. 

We  now  come  to  1869,  in  which  year  the  present 
state  of  the  law  was  created,  and  it  is  this  law  which 

l.p.  49  e 


THE   LAW  AND  THE   POOR 

seems  to  me  so  unjust  to  wage  earners  and  poor 
people  who  are  in  debt,  placing  them  as  it  does  in 
conjunction  with  the  Bankruptcy  Laws  in  such  a 
wholly  inferior  position  to  that  of  the  well-to-do 
citizens.  In  order  to  understand  the  exact  legal 
position  it  is,  I  fear,  necessary  to  deal  with  the 
matter  in  some  little  detail. 

The  intention  of  the  Legislature  at  the  time 
seems  to  have  been  right  enough.  It  was  desired, 
no  doubt,  that  a  fraudulent  debtor  should  be 
punished  and  that  an  honest  debtor  should  not. 
If  a  means  could  be  invented  to  carry  out  this 
principle  no  one  would  utter  a  word  against  it.  A 
fraudulent  debtor  is,  I  take  it,  a  man  who,  having 
ample  means  over  and  above  the  reasonable  necessi- 
ties of  himself  and  his  family,  conceals  them  or 
places  them  in  fictitious  names  and  then  defrauds 
his  debtor  and  refuses  to  pay  him. 

I  should  be  in  favour  of  more  stringent  measures 
being  taken  against  the  fraudulent  debtor,  for  one 
meets  him  every  day,  well-to-do  and  smiling,  with 
a  bill  of  sale  on  his  furniture  and  everything  in  his 
wife's  name.  But  he  is  the  curled  darling  of  the  law. 
He  makes  use  of  the  law  to  protect  himself  and  his 
frauds,  and  the  Debtors  Act,  which  was  intended  to 
abolish  imprisonment  for  debt,  has  no  terrors  for 
him,  whilst  under  its  provisions  hundreds  of  weekly 
wage  earners  are  imprisoned. 

As  Sir  George  Jessel  said,  the  real  intention  of  the 
Debtors  Act,  1869,  was  to  abolish  imprisonment  for 
debt  for  honest  debtors  and  to  retain  the  right  of 
judges  to  punish  fraudulent  debtors.     Many  of  the 

50 


IMPRISONMENT   FOR   DEBT   IN   ENGLAND 

sections  of  the  Act  are  framed,  and  to  some  extent 
assist,  in  the  excellent  aim  of  making  it  hot  for  the 
naughty  and  wicked  debtor  who  has  cheated  or 
defrauded  his  creditors.  Why  is  such  a  person 
punished  ?  asks  the  Master  of  the  Rolls.  I  give 
the  answer  in  his  own  words.  "  Simply  because  he 
is  a  dishonest  man.  He  need  not  perhaps  be  called 
a  thief  in  so  many  words,  but  he  is  a  man  who  takes 
or  keeps  money  belonging  to  other  people,  and  he  is 
punished  accordingly."  Instances  of  such  are  de- 
faulting trustees  and  similar  misdemeanants,  and, 
so  far  as  the  Act  provides  for  their  punishment,  we 
have  no  quarrel  with  it. 

Now  no  one  would  contend  that  the  system  of 
imprisonment  for  debt  as  carried  out  in  the  County 
Courts  is  a  system  directed  in  the  main  against 
dishonest  men.  Improvident,  careless',  foolish  and 
childlike  these  poor  defendants  in  the  County  Court 
may  fairly  be  described  ;  but  if  a  day  of  judgment 
audit  could  be  carried  out,  and  a  balance  struck  on 
the  item  of  "  honesty  "  as  between  the  working-men 
debtors  and  the  class  of  traders  who  give  them  credit, 
I  make  little  doubt  which  class,  as  a  class,  would 
show  the  better  figures.  No,  we  do  not  imprison 
in  the  County  Court  for  dishonesty  per  se  ;  dis- 
honesty may  or  may  not  be  a  feature  of  any  particular 
case,  but  it  is  not  an  essential. 

The  order  for  imprisonment  is  made  under 
section  5  of  the  Debtors  Act,  1869.  That  is  the 
tally-man's  charter,  I  am  sorry  to  bore  anyone  with 
all  these  sections  and  statutes,  but  there  is  such  a  lot 
of  inaccuracy  written  and  talked  about  the  matter 

51  e  2 


THE   LAW  AND  THE   POOR 

that  it  is  best  to  set  down  the  actual  enactment. 
We  must  remember  then  that  the  Act,  being  an 
Act  for  the  abolition  of  imprisonment  for  debt,  had 
begun  by  enacting  in  the  fourth  section  that  "  with 
the  exceptions  hereinafter  mentioned  no  person 
shall  be  arrested  or  imprisoned  for  making  default 
in  payment  of  a  sum  of  money."  These  last  words 
state  quite  clearly  the  true  principle  of  what  the  law 
ought  to  be.  Unfortunately  for  the  poor  the 
special  exception  made  for  them  has  only  too  truly 
proved  the  rule. 

The  opponents  of  abolition  were  but  too  successful 
in  their  endeavours  to  make  inroads  upon  the 
thoroughness  of  the  proposed  reform,  and  one  ot  the 
exceptions  was  called  "  a  saving  power  of  committal 
for  small  debts."  It  might  have  been  better 
described  perhaps  "as  a  saving  power  to  imprison 
poor  debtors."  This  is  the  famous  section  5  of  the 
Debtors  Act,  1869,  over  which  so  much  controversy 
has  since  arisen,  on  the  working  of  which  two 
important  commissions  have  sat  and  reported,  and 
under  which  we  may  proudly  claim  to  be  one  of  the 
last  civilised  countries  that  clings  to  a  system  of 
imprisonment  for  debt. 

It  is  necessary  to  set  out  the  section  at  some 
length,  for  it  has  a  googlie  element  about  it  and  is  not 
so  innocent  as  it  appears  on  the  surface.  It  first 
sets  out  "  that  any  Court  may  commit  to  prison  for 
six  weeks  any  person  who  makes  default  in  the 
payment  of  a  debt  or  instalment  due  in  pursuance  of 
a  judgment."  That,  of  course,  is  plain  sailing 
imprisonment  for  debt.     Then,  however,  follows  the 

52 


IMPRISONMENT   FOR   DEBT   IN   ENGLAND 

sub-section — I  again  apologise  for  troubling  you 
with  all  this,  but  it  is  really  a  good  citizen's  duty  to 
understand  it — which  causes  all  the  worry.  It  is 
enacted  in  sub-section  (2)  "  that  such  jurisdiction 
shall  only  be  exercised  where  it  is  proved  to  the 
satisfaction  of  the  Court  that  the  person  making 
default  either  has  or  has  had  since  the  date  of  the 
order  or  judgment  the  means  to  pay  the  sum  in 
respect  of  which  he  has  made  default  and  has 
refused  or  neglected  or  refuses  or  neglects  to  pay  the 
same." 

It  is  the  words  that  I  have  printed  in  italics  that 
hit  the  poor  man  and  the  weekly  wage  earner,  for  of 
course  it  is  generally  provable  that,  although  he  has 
no  present  means  to  pay  a  debt,  he  has  had  since 
the  judgment  means  to  pay  which  he  has  spent  on 
the  maintenance  of  his  family,  or,  if  you  will,  on 
beer  or  tobacco,  or  picture  palaces,  or,  in  a  word, 
as  good  solvent  middle  class  people  would  say — 
improvidently. 

The  further  matters  enacted  are  all  sensible  enough, 
granted  you  approve  of  the  main  principle  of  im- 
prisonment for  small  debtors.  They  deal  with  proof 
of  means  of  the  person  making  default,  allowing  such 
proof  to  be  given  in  such  manner  as  the  Court  thinks 
just,  and  for  these  purposes  the  debtor  and  any 
witnesses  may  be  summoned  and  examined  on  oath 
according  to  the  prescribed  rules. 

The  other  material  points  of  the  section  are  that  a 
County  Court  judge  must  exercise  his  jurisdiction  in 
open  Court,  he  may  order  the  debt  to  be  paid  by 
instalments,    he   may  also   make  continuous  com- 

53 


THE   LAW  AND   THE   POOR 

mittals  on  each  unpaid  instalment,  he  may  vary  and 
rescind  the  order,  and  the  imprisonment  when 
suffered  does  not  distinguish  or  discharge  the  debt 
or  other  remedies  of  the  creditor.  The  debtor  can 
take  his  release  in  payment  of  debt  and  costs. 

Anyone  who  studies  this  Act  of  1869  and  comes  to 
the  conclusion  that  this  system  is  anything  less  than 
imprisonment  for  debt,  and  not  imprisonment  for 
fraud,  must,  I  think,  be  driven  to  argue  that  the  men 
who  drafted  the  Act  called  the  Act  an  Act  for  the 
abolition  of  imprisonment  for  debt,  called  section  5 
a  saving  clause  for  continuing  imprisonment  for 
small  debtors  in  certain  cases,  and  did  not  under- 
stand their  business.  As  a  matter  of  lact  they  knew 
their  business  very  well  indeed,  and  they  carried  it 
out  faithfully  and  well. 

What  happened  undoubtedly  was  this  :  Parlia- 
ment as  a  whole  was  out  to  abolish  imprisonment  for 
debt.  There  were  a  lot  of  old-fashioned  folk  then  as 
now,  who  wanted  to  retain  it.  Compromises  were 
made.  It  was  agreed  that  there  should  be  abolition, 
it  was  also  agreed  that  there  should  be  exceptions. 
The  exceptions  readily  granted  were  cases  of  fraudu- 
lent trusteeship  and  the  like.  This  was  not  enough 
for  the  old  gang,  so  the  promoters  of  the  reform 
threw  in  poor  persons  owing  small  debts.  The  poor 
had  as  few  friends  in  Parliament  as  the  fraudulent 
and  they  were  huddled  together  into  the  same  bundle 
of  exceptions  as  a  sop  to  the  opponents  of  the  Bill. 
When  folk  describe  our  present  system  in  the  County 
Court  as  anything  other  than  imprisonment  for  debt, 
a  legitimate  offspring  of  its  noble  Norman  ancestor 

54 


IMPRISONMENT   FOR   DEBT   IN   ENGLAND 

capias  ad  satisfaciendum,  they  do  it  in  ignorance  of 
the  legal  and  political  history  of  the  Debtors  Act, 
1869. 

I  should  like  to  have  set  out  much  of  the  debate  in 
the  House  of  Commons  on  the  second  reading  of  this 
Bill.  Sir  Robert  Collier,  the  Attorney-General, 
openly  expressed  his  regret  that  imprisonment  for 
debt  was  going  to  be  retained  in  the  County  Courts, 
and  several  members  spoke  wisely  about  the  hard- 
ships then  inflicted  on  the  poor  and  the  undesirability 
of  continuing  them.  But  the  following  extract  from 
a  speech  of  Mr.  McMahon  shows  that  no  one  at  that 
time  was  under  any  delusion  about  what  was  going 
to  be  done.  "  When,"  he  said,  "  arrest  on  mesne 
process  was  abolished  shortly  after  the  passing  of  the 
Reform  Bill  it  was  then  said  that  credit  would  be 
disturbed,  and  that  traders  would  not  be  able  to 
carry  on  their  business.  But  these  forebodings  were 
purely  imaginary,  and  in  the  same  way  he  believed 
no  evil  would  attend  the  good  that  must  undoubtedly 
result  from  the  final  abolition  of  imprisonment.  If, 
however,  they  allowed  the  rich  man  to  escape  under 
the  bankruptcy  system  they  ought  not  to  admit  the 
poor  man  to  be  liable  to  imprisonment,  for  by  so 
doing  they  would  certainly  be  open  to  the  charge  of 
having  one  law  for  the  man  in  broadcloth  and 
another  for  the  man  in  corduroys." 

Here  the  warning  is  clearly  given  by  a  man  on  the 
spot,  that  what  they  were  about  to  do  was  to  set  up 
a  system  unfair  to  the  poor,  and  there  was  really  no 
doubt  in  the  minds  of  any  of  the  legislators  of  the 
day  that  they  were  deliberately  retaining  imprison- 

55 


THE   LAW   AND   THE   POOR 

ment  for  debt  for  the  poor.  I  want  to  insist  on  this 
point  because  one  of  the  stumbling  blocks  in  the  way 
of  reform  to-day  is  the  strange  belief,  fostered  by  the 
tally-man  and  his  friends,  that  in  some  mysterious 
way  imprisonment  for  debt  has  really  been  already 
abolished  and  that  the  working  classes  reaUy  go  to 
prison  for  contempt  of  court  or  some  other  reason. 
There  is  no  truth  in  this  whatever. 

The  Attorney-General  who  introduced  the  Debtors 
Act,  1869,  may  surely  be  credited  with  under- 
standing what  it  was  intended  to  do.  He  knew 
well  enough  that  his  Bill  was  going  to  abolish 
imprisonment  for  debt  for  the  rich  and  retain  it 
for  the  poor.  He  pointed  out  that  he  was  making 
bankruptcy  cheaper  and  more  stringent.  It  would 
be  obviously  absurd,  he  said,  to  make  a  day  labourer 
a  bankrupt,  and  that  brought  him  to  the  very  diffi- 
cult question  of  County  Court  jurisdiction.  At  that 
time  the  County  Court  had  a  jurisdiction  to  punish 
for  fraud  as  an  incident  of  debt  and  also  to  imprison 
for  debt.  He  proposed  to  take  away  the  jurisdiction 
to  imprison  for  fraud  and  to  leave  fraudulent 
debtors,  both  rich  and  poor,  to  the  Criminal  Courts. 
"  But  then,"  he  continued,  "  came  the  other  ques- 
tion of  County  Court  imprisonment  where  a  man  was 
able  to  pay  his  debt,  but  would  not  do  so.  He  did  not 
regard  that  imprisonment  as  a  mere  punishment  for  a 
past  offence  but  it  was  a  process  of  imprisonment  for 
the  purpose  of  compelling  the  payment  of  a  debt,  and  it 
was  a  process  very  analogous  to  the  principle  of  the 
Bankruptcy  Law."  He  came  to  the  conclusion, 
after  further  argument,  "that  this  power  of  imprison- 

56 


IMPRISONMENT  FOR  DEBT  IN  ENGLAND 

ment  in  the  one  case  he  had  mentioned  must  be 
retained." 

When  an  Attorney-General  in  1869  brings  in  a 
Bill  to  abolish  imprisonment  for  debt  and  deli- 
berately tells  us  that  he  retains  one  class  of  imprison- 
ment for  debt,  it  is  inconceivable  why  people  to-day 
should  strive  to  make  out  that  the  system  we  are 
working  is  not  imprisonment  for  debt,  but  some- 
thing else.  Unless  it  be  that  the  advocates  of 
imprisonment  for  debt  know  in  their  heads  that  it 
is  an  evil,  out-of-date  system,  and  they  have  an 
instinct  that  it  smells  more  sweetly  under  some  other 
name. 

From  1869  to  the  present  there  has  been  no 
further  reform.  Many  hope  that  there  never  will 
be  any,  but  for  my  part  I  have  no  doubt  it  will  come 
along,  not  in  my  time,  perhaps,  but  whenever  the 
right  moment  may  be.  From  1869  until  to-day 
over  three  hundred  thousand  English  citizens  have 
been  actually  imprisoned  who  have  not  been  guilty 
of  any  crime  whatsoever.  They  have  been 
imprisoned  mainly  for  poverty  or,  if  you  will,  for 
improvidence — that  blessed  word  that  so  insidiously 
describes  in  the  poor  that  failure  in  economic 
asceticism,  that  lack  of  cold  self-denial  of  luxury 
and  extravagance,  that  absence  of  patient  thrift 
and  simplicity  of  life — characteristic  features  which 
are  never  wanting  in  the  beautiful  lives  of  those 
social  classes  above  them  that  the  poor  must  learn 
to  look  up  to  and  to  imitate. 


57 


CHAPTER   IV 

HOW   THE   MACHINE   WORKS 

Roll  on,  thou  ball,  roll  on  ! 
Through  seas  of  inky  air 

Roll  on  1 
It's  true  I've  got  no  shirts  to  wear, 
It's  true  my  butcher's  bill  is  due  ; 
It's  true  my  prospects  all  look  blue — 
But  don't  let  that  unsettle  you  ! 

Never  you  mind  ! 

Roll  on  1 
W.  S.  Gilbert  :   "  To  the  Terrestrial  Globe." 

I  fear  the  earth  will  do  a  lot  of  rolling  on  before 
we  abolish  imprisonment  for  debt,  but  very  likely 
I  am  exhibiting  a  somewhat  senile  haste  in  the 
matter  which  is  unbecoming.  To  me  it  appears 
strange  that,  whilst  in  every  other  science  the 
professors  of  it  are  making  earnest  efforts  to  place 
the  result  of  their  studies  to  the  credit  of  mankind, 
the  law  seems  more  incapable  than  theology  of 
assimilating  new  ideas  and  getting  into  step  with 
the  march  of  time.  I  have  no  hesitation  in  saying 
that  the  County  Court,  as  a  debt-collecting  machine, 
is  a  one-horse  wooden  antiquity  only  fit  for  the  scrap 
heap.  If  you  went  down  to  Euston  and  found  them 
coupling  up  Puffing  Billy  to  the  Scotch  Express 
and  the  engine  driver  dissolved  in  tears,  you  would 
understand  the  kind  of  hopeless  feeling  that  oppresses 

58 


HOW   THE   MACHINE   WORKS 

me  every  morning  when  I  sit  down  to  try  a  hundred 
judgment  summonses. 

For  how  can  they  be  said  to  be  tried  in  the  sense 
in  which  an  Englishman  is  supposed  to  be  tried 
before  he  is  deprived  of  his  liberty.  There  is  very 
little  evidence,  often  the  defendant  makes  no 
appearance  and  does  not  even  send  his  wife  to  tell 
the  tale  for  him.  He  cannot  afford  to  leave  his  work 
and  she  ought  not  to  be  asked  to  leave  her  babies. 
The  word,  therefore,  of  the  plaintiff,  or,  more 
probably,  the  debt  collector — and  many  of  these 
men,  making  it  their  business  and  dealing  daily  with 
the  Court,  are  far  more  accurate  and  careful  than  the 
plaintiffs  themselves — this  is  all  you  have  to  go  by. 
The  law,  as  I  told  you,  left  it  entirely  to  the  taste 
and  fancy  of  the  judges  what  evidence  they  should 
receive,  and  though  nowadays  all  judges  honestly 
endeavour,  I  think,  not  to  carry  oat  the  law  to  the 
full  extent  of  its  cruelty,  yet  naturally  different  men 
hold  different  views  of  the  rights  and  liabilities  of  the 
poor,  and  so  there  is  no  sort  of  equality  in  the 
treatment  they  receive  in  different  districts. 

Thus  we  have  in  the  working  of  imprisonment  for 
debt  everything  that  is  undesirable.  The  liberty  of 
the  subject  is  at  stake,  but  there  is  no  right  of  trial 
by  jury,  such  as  the  fraudulent  bankrupt  or  any 
other  misdemeanant  is  entitled  to  ;  the  evidence  on 
which  the  debtor  is  convicted  and  sent  to  gaol  is  any 
evidence  that  the  judge  thinks  good  enough,  and 
within  the  limit  of  six  weeks  the  imprisonment  is 
anything  that  each  particular  judge  determines. 
There  is,  of  course,  no  appeal,  and  when  the  prisoner 

59 


THE   LAW   AND   THE   POOR 

comes  out  of  gaol  he  still  owes  the  debt,  though  he 
cannot  be  imprisoned  again  for  the  same  debt  or 
instalment.  The  multiplicity  of  these  proceedings 
is  appalling.  There  are  over  a  million  small  debt 
summonses  issued  every  year  and  nearly  four 
hundred  thousand  judgment  summonses,  of  which 
about  a  quarter  of  a  million  are  heard.  What  a 
waste  of  time  and  energy  it  all  means.  Judges, 
registrars,  solicitors,  bailiffs,  debt  collectors,  the 
piling  up  of  costs  and  fees  on  to  the  original  debt, 
the  dragging  off  to  gaol  of  an  occasional  debtor 
pour  encourage?  les  autres,  the  breaking  up  of  some 
poor  home,  the  blackmailing  of  friends  and  relations 
very  little  better  off  than  the  poor  debtor  himself, 
the  squeezing  of  the  pittance  out  of  the  bellies  of  the 
little  children  to  keep  the  father  out  of  prison— 
what  a  picture  to  leave  on  the  canvas  of  our  own 
generation  for  our  grandchildren  to  scoff  at. 

And  the  business  result  of  it !  Even  when  the 
debt  is  paid— if  it  is  paid — after  years  of  waiting  and 
hours  spent  coming  down  to  the  Courts  seeing  if  the 
money  is  yet  paid  in — or  20  per  cent,  paid  to 
a  debt  collector  to  do  it  for  you— when  all  is  finished, 
would  it  not  have  been  far  better  if  you  had  recog- 
nised that  you  had  made  a  bad  debt  and  stood 
yourself  a  few  shillings  worth  of  righteousness  in 
forgiving  your  debtor  his  indebtedness  ?  Certain  it 
is  that  the  system  is  useless  to,  and  very  little  used 
by,  the  respectable  individual  creditor.  Indeed,  if 
he  tries  to  use  it,  he  stumbles  into  so  many  pitfalls 
and  finds  the  procedure  of  it  so  troublesome  and 
uncanny  that  he  very  often  fails  to  stay  the  course, 

60 


HOW   THE   MACHINE   WORKS 

and,  after  a  few  wasted  days,  goes  his  way  and 
leaves  the  debtor  to  go  his.  The  best  customers  of 
the  County  Court,  indeed  the  only  people  to  whom 
the  system  of  imprisonment  for  debt  is  of  any  real 
service,  are  those  traders  who  carry  on  a  business 
which  can  only  be  carried  on  and  made  to  pay  by 
reason  of  the  sanction  of  the  shadow  of  the  gaol 
which  is  of  the  essence  of  the  contract. 

The  tally-men,  the  moneylenders,  the  flash 
jewellery  touts,  the  sellers  of  costly  Bibles  in  series, 
of  gramophones  and  other  luxuries  of  the  mean 
streets,  these  are  the  knaves  the  State  caters  for. 
For  these  businesses  are  based,  and  soundly  and 
commercially  based,  on  imprisonment  for  debt. 
The  game  is  to  go  forth  with  a  lot  of  flash  watches, 
persuade  a  workman  in  a  public-house  or  elsewhere 
to  sign  a  paper  that  he  has  bought  one — he  always 
says,  silly  fellow,  that  he  thought  he  had  it  on 
approval — and  when  he  fails  to  pay  his  instalments 
put  him  in  the  County  Court.  I  have  known  a 
pigeon-flying  working  man  earning  thirty-five  shil- 
lings a  week  buy  a  watch  priced  eight  pounds  which 
had  a  second  hand  and  a  stop  movement  for  timing 
that  momentarily  overcame  his  better  sense  of 
economy.  Without  imprisonment  for  debt  it  would 
not  have  paid  the  servant  of  the  Evil  One  to  have 
led  him  into  the  temptation. 

To  these  traders  the  County  Court  is  of  real  value. 
They  issue  their  plaints  in  bundles,  they  take  out 
judgment  summonses  in  batches  of  thirty,  fifty,  or  a 
hundred  at  a  time,  they  can  afford  to  have  a  skilled 
clerk  well  versed  in  the  procedure  of  the  Court  to  fill 

61 


THE   LAW   AND   THE   POOR 

up  the  papers,  and  can  run  the  machine  which  a 
complacent  State  puts  at  their  disposal  with  very 
good  results  to  themselves.  I  remember  a  firm 
starting  in  Manchester  with  the  sale  of  some  sort  of 
horse  medicine — good  or  bad  is  really  no  matter. 
The  method  of  business  was  delightfully  simple. 
The  proprietor  travelled  round  in  Herefordshire  and 
Devonshire  and  persuaded  the  farmers  to  try  some 
of  the  horse  medicine.  A  form  was  signed  which  was 
a  contract  of  sale  and  a  promise  to  pay  in  Man- 
chester. This  gave  the  Manchester  Court  juris- 
diction to  issue  the  summonses,  which  were  for  sums 
of  under  two  pounds.  Letters  came  complaining 
that  no  contract  had  been  intended,  that  the  stuff 
was  worthless,  etc.,  but  no  one  turned  up  and  judg- 
ment went  by  default.  The  success  of  the  business 
was  its  ruin.  The  plaintiff,  tired  of  filling  up  the 
forms  of  the  Court  and  well  knowing  that  none  of  his 
customers  would  pay  without  process,  actually  had 
affidavits  of  his  own  ready  printed,  and  this  cynical 
admission  of  the  fraudulent  nature  of  his  trade — for 
an  honest  man  would  not  expect  nearly  all  his  cus- 
tomers to  refuse  to  accept  goods  ordered — led  to  his 
undoing.  Inquiries  were  made,  one  or  two  farmers 
were  induced  to  appear  and  give  evidence,  and  his 
business  career  came  to  an  end. 

I  am  not,  of  course,  saying  that  the  County  Court 
exists  only  for  those  who  have  the  courage  and 
effrontery  to  make  the  full  use  of  the  machine  as  an 
accessory  to  shady  trading.  But  it  can  be  demon- 
strated that  imprisonment  for  debt  is  the  mainstay 
of  such  trades  as  moneylending  and  credit  drapery 

62 


HOW  THE   MACHINE   WORKS 

and  all  those  low  trades  that  make  their  profits  by 
foisting  shoddy  luxuries  on  to  working  men  and  their 
wives. 

Some  time  ago  I -made  a  careful  examination  of 
some  460  judgment  summonses  taken  consecutively. 
The  figures  were  from  the  Manchester  Court.  I 
found  the  following  were  the  trades  represented  : — 


Drapers  . 

154 

General  dealers 

130 

Jewellers 

60 

Grocers   . 

35 

Moneylenders  . 

24 

Doctors  . 

10 

Tailors     . 

5 

Miscellaneous  traders  issuing  less 

than  four  summon 

ses 

.       42 

460 

General  dealers,  it  must  be  remembered,  are 
traders  in  a  large  or  small  way  of  business  who  will 
sell  furniture,  drapery,  clothes,  cutlery,  or  anything 
you  like,  on  the  instalment  system.  Their  methods 
of  trading  are  tally-men's  methods. 

If  this  list  be  looked  at,  it  will  be  seen  that  the 
general  public  make  very  little  use  of  imprisonment 
for  debt.  The  substantial  shopkeeper  and  ratepayer 
is  scarcely  represented  at  all,  the  grocers  and  a  few  of 
the  big  general  dealers  being  the  only  people  who  pay 
rates.  Some  of  these  general  dealers  it  should  be 
remembered  are  limited  companies  having  numerous 
agents  paid  by  high  commissions  and  spending  large 

63 


THE   LAW   AND   THE   POOR 

sums  in  advertising.  Their  prices  are  apparently 
low,  but  the  quality  of  their  goods  leaves  much  to  be 
desired.  Now  what  worries  me  is,  why  should  the 
State  keep  Courts  going  for  merifof  this  class  ?  The 
only  creditor  in  that  list  for  whom  one  can  have  the 
least  sympathy  is  the  doctor,  and  the  National 
Insurance  Act  has  now  put  him  on  a  cash  basis,  so 
that  in  a  list  taken  to-day  he  would  not  appear  so 
often.  It  is  clear  from  these  figures  that  at  a  cost  to 
the  general  body  of  taxpayers  you  are  encouraging  a 
bad  class  of  parasite  traders  to  choke  the  growth  of 
thrift  among  the  working  classes. 

For  unless  you  make  it  ruinous  to  the  creditor  for 
the  credit  to  be  given  you  will  never  stop  it.  How 
can  a  man  at  work  hinder  credit  being  given  through 
the  agency  of  the  wife  when  the  law  permits  it  and 
caters  for  it  by  providing  the  trader  who  lives  by  it 
with  a  special  debt-collecting  machine  without  which 
this  class  of  trader  were  impossible.  I  have  known 
cases  where  a  working  man's  wife  was  dealing  with 
nineteen  different  Scotch  drapers.  What  wages  can 
satisfy  such  an  orgy  of  drapery  as  that  ?  How  often, 
too,  do  men  and  women  buy  watches  to  pawn  them 
for  drink  or  a  day  at  the  races  ?  What  is  this  but  an 
evil  and  ruinous  form  of  moneylending  ?  And  what 
makes  these  things  possible  among  our  poor  people  ? 
The  law  siding  with  the  knave  against  the  fool ;  the 
saving  clause  for  the  imprisonment  of  poor  debtors  in 
the  Act  of  1869. 

And  whereas  I  shall  show  you  that  bankruptcy  and 
divorce  are  the  luxuries  of  the  rich,  so  it  is  only  fair, 
I  think,  to  allow  that  imprisonment  for  debt  is  a 

64 


HOW  THE   MACHINE   WORKS 

distinctive  privilege  that  the  law  reserves  for  the 
poor.  A  man  among  the  well-to-do  classes  is  never 
imprisoned  for  debt ;  the  wage-earners  are  prac- 
tically the  only  people  who  are  subject  to  it. 

The  governor  of  a  gaol  reported  a  case  to  the  last 
Select  Commission  that  sat  and  did  nothing  on  the 
subject.  A  labourer  was  sent  to  his  custody  for 
twenty-one  days  in  default  of  payment  of  four 
shillings  and  costs,  five  and  ninepence  in  all.  How 
can  a  State  for  very  shame  prate  about  the  extortion 
of  moneylenders  when  it  adds  forty  per  cent,  on  to  a 
small  debt  like  this  for  costs  ?  The  man  was  a 
widower  with  four  children,  the  eldest  of  whom  was 
thirteen,  and  the  youngest  two  or  three  years  old. 

When  father  went  to  prison  the  children  went  to 
the  workhouse.  That  is  all  part  of  the  system.  The 
debt  was  a  tally-man's  debt  for  clothes  supplied  to  his 
late  wife.  The  governor  sent  it  as  a  typical  case  for 
the  Commission  to  consider.  "As  I  believe,"  he 
wrote,  "  that  there  is  an  idea  of  having  the  law  on 
imprisonment  for  debt  amended." 

The  good  governor  was,  of  course,  entirely  mis- 
taken about  that.  There  is  no  such  idea,  except  in 
the  heads  of  dreamers  and  visionaries  like  Elisha  and 
the  good  governor  and  myself,  and  we  do  not  count. 
So  his  report  ended  in  nothing,  and  remains  on  record 
as  a  typical  result  of  the  working  of  imprisonment 
for  debt  in  a  civilised  European  State  in  the  early 
part  of  the  year  of  our  Lord  1909. 

I  should  like  to  leave  the  matter  there  as  a  horrible 
example,  for  so  it  is,  but  I  am  a  man  of  truth — and, 
in  fact,  the  poor  labourer  was  not  kept  in  gaol.     It 

L.P.  65  F 


THE   LAW  AND  THE  POOR 

was  afterwards  discovered  that  the  good  governor, 
when  he  investigated  the  man's  case  at  9.30  a.m. 
on  the  morning  after  his  arrest,  had  paid  his  debt 
for  him  and  set  him  free.  You  remember  that 
Elisha  in  a  similar  case  performed  a  miracle  by  filling 
several  jars  with  oil.  For  myself,  I  think  the  good 
governor's  was  an  even  nobler  deed. 

And  when  the  supporters  of  this  wretched  system 
tell  you  that  very  few  people  actually  go  to  gaol, 
that  is,  in  a  sense,  true.  There  are  only  about  six 
or  seven  thousand,  say,  who  go  to  prison  on  a  hundred 
and  odd  thousand  warrants  issued.  The  number 
too,  is  decreasing.  This  is  not,  however,  to  the 
credit  of  the  law,  but  because,  as  I  shall  show,  the 
law  is  not  strictly  administered,  and  also  because 
the  public  conscience,  what  Lord  Haldane  so 
graphically  described  under  the  German  title 
Sittlichkeit,  is  against  it.  The  habit  of  mind, 
custom,  and  the  right  action  of  good  citizens  do  not 
sanction  enforcing  debt  by  imprisonment.  It  is  only 
the  greedy,  low-down  citizens  who  deign  to  use  it. 
But  the  matter  is  lightly  regarded.  A  few  thousand 
poor  people  doing  time  for  trumpery  debts  cannot, 
anyhow,  be  allowed  to  trouble  the  sleep  of  the 
middle-class  voter,  and  what  am  I  but  an  untaught 
knave  to  bring  their  slovenly,  unhandsome  corpses 
betwixt  the  wind  and  his  nobility  ? 

It  is  not  only  the  very  poor  who  are  dragged 
to  gaol  that  suffer.  The  system  is  really  one  for 
blackmailing  the  poor  man's  friends  and  relations. 
You  ask  a  debtor  when  he  comes  before  you  on  a 
second  instalment  of  a  debt  :    "  But  you  managed 

66 


HOW   THE   MACHINE   WORKS 

to  pay  the  first  instalment  ?  "  "  Yes,"  he  replies  ; 
"  but  I  had  to  borrow  it  from  my  brother-in-law, 
and  I  have  not  paid  him  back  yet,  and  he  can  ill- 
afford  to  lose  it." 

I  have  heard  that  story  hundreds  of  times,  and  I 
know  it  is  often  a  true  one.  Bailiffs  will  tell  you 
that  on  the  road  to  gaol  a  prisoner  will  ask  to  be 
allowed  to  call  at  various  houses,  looking  for  an 
Elisha,  and  if  he  cannot  find  anyone  to  work  miracles 
nowadays  he  does  very  often  find  someone  with 
five  and  ninepence  and  a  kind  heart.  The  poor  are 
very  good  to  one  another  in  distress,  and  it  is  better 
that  a  brother  man  should  be  saved  from  gaol  and 
restored  to  his  home  and  children  than  that  the  land- 
lord should  have  his  next  week's  rent. 

In  the  bad  old  days  a  County  Court  judge  openly 
said  that  he  found  it  better  to  commit  to  prison  for 
six  weeks  rather  than  any  shorter  period,  for  he 
found  that  the  longer  the  period  for  which  he 
committed  people  to  prison  the  shorter  the  term 
served,  "  because  when  they  were  committed  for  the 
whole  six  weeks  they  moved  heaven  and  earth 
among  their  friends  to  get  the  funds  to  pay." 

Friends  of  the  system  of  imprisonment  for  debt 
call  this  "  putting  the  screw  on."  I  think  "  black- 
mailing "  is  the  straighter  English— but  any  dirty 
old  phrase  will  do. 

And  an  enormous  evil,  the  extent  and  results  of 
which  can  only  be  guessed,  is  that  the  power  to  send 
a  fellow  citizen  to  gaol  for  debt,  the  power  to  issue 
or  not  to  issue  a  warrant  for  his  arrest  at  any  moment 
after  he  is  in  default,  places  a  man  and  his  family  so 

67  F  2 


THE  LAW  AND  THE  POOR 

entirely  at  the  mercy  of  his  creditor  that,  if  the 
creditor  be  a  man  of  bad  character,  terrible  results 
may  follow.  Few  of  us  probably  have  not  heard 
stories  of  an  evil-minded  creditor  using  his  power 
to  seduce  the  virtue  of  a  wife  in  her  husband's 
absence.  There  is  certainly  truth  in  such  stories. 
Human  nature  is  the  same  in  narrower  lanes  than 
Park  lane.  The  tally-man  plays  on  the  wife's  love 
of  finery,  she  gets  into  debt,  her  husband  knows 
nothing  of  it.  As  long  as  the  wife  is  complacent 
nothing  is  heard  of  the  debt.  I  do  not  say  such 
scandals  are  common,  but  I  have  heard  enough  of 
such  stories  to  know  they  are  not  fairy  tales.  Human 
nature  being  what  it  is  the  wonder  is  that  these 
dramas  are  not  more  often  enacted.  When  the  poor 
have  their  Divorce  Courts  no  doubt  the  evidence  of 
them  will  be  forthcoming,  meanwhile  they  rest 
mainly  on  the  complaints  of  women  of  insults  offered 
to  them,  which  may  be  fabrications,  but  are  not 
always  so.  What  a  responsibility  rests  on  a  State 
that  maintains  a  system  which  leads  to  such  evils. 
Another  and  less  terrible  affair  is  the  political 
influence  wielded  by  a  grocer  or  draper  over  the  free 
and  independent  voter  whom  he  can  put  in  gaol  for 
twenty-one  days  if  he  fails  to  see  eye  to  eye  with  him 
at  election  times  about  Disestablishment  or  Tariff 
Reform.  Yet  this  is  one  of  the  minor  evils  of  the 
working  of  the  Debtors  Act  of  1869.  In  a  hard- 
fought  Lancashire  election  which  ended  in  a  tie 
there  was  a  great  flutter  and  to-do  caused  by  the 
arrest  on  the  eve  of  the  poll  of  some  earnest  debtor 
of  one  colour  by  an  equally  earnest   creditor  of 

68 


HOW  THE   MACHINE   WORKS 

another  colour.  It  may,  of  course,  have  had 
nothing  to  do  with  the  election — but  one  never 
knows.  Anyhow,  it  happened,  and  it  was  certainly 
not  a  desirable  incident  from  the  point  of  view  of  the 
losing  candidate. 

The  theoretical  arguments  against  the  abolition 
of  imprisonment  for  debt  are  few.  The  chief  one 
is  that  a  working  man  would  be  unable  to  get  credit 
in  times  of  distress.  Personally  I  do  not  believe  it. 
The  argument  has  been  used  on  every  occasion  when 
any  legislative  step  has  been  taken  to  mitigate 
imprisonment,  for  always  the  prophecy  has  been  : 
trade  will  suffer  and  individuals,  for  want  of  credit, 
will  starve.  On  every  occasion  the  facts  have 
obstinately  refused  to  honour  the  prophecy  after  the 
event.  I  am  inclined  to  back  history  against 
prophecy  in  this  matter.  Credit  will  be  given  to  a 
working  man  of  good  character  to  a  reasonable 
amount,  but  he  will  not  be  tempted,  as  he  is  to-day, 
to  mortgage  his  future  wages  on  the  security  of  his 
body  for  every  passing  whim.  Beer  is  a  cash 
business,  betting  is  a  cash  business,  picture  palaces, 
railway  trains,  tram  cars,  slot  machines,  are  all  run 
on  a  cash  basis,  yet  no  one  will  pretend  that  the 
working  man  does  not  get  as  much  as  he  wants  of 
the  goods  and  services  of  all  of  them. 

To-day  the  temptation,  and  very  largely,  I  am 
sorry  to  say,  the  practice,  is  for  a  workman  to  make 
the  brewer  and  the  betting  man  first  mortgagees  of 
his  weekly  wages,  whilst  the  draper  and  the  grocer 
are  too  often  very  ordinary  shareholders  indeed, 
obtaining  an  irregular  dividend  ranking  after  the 

69 


THE  LAW  AND   THE   POOR 

Treasury  fees  of  the  County  Court.     Can  anyone 
honestly  say  that  it  would  not  be  better  for  the 
draper  and  the  grocer  to  have  their  working-class 
business  put  on  a  cash  basis.     Abolish  imprisonment 
for  debt  and  the  grocer  and  draper  will  demand  cash 
in   advance   or,   at   the  worst,   weekly  bills.     The 
workman  will  then  be  face  to  face  with  the  immediate 
question  of  whether  he  prefers  to  spend  his  wages  in 
drink  and  pleasure  for  himself  or  food  and  clothes 
for  his  wife  and  children.     I  have  no  doubt  what  his 
answer  will  be.     The  working  man  is  of  the  same 
nature  as  ourselves.     In  the  old  days  of  general 
imprisonment  for  debt  everyone  lived  in  debt.     The 
middle  classes  were  tempted  to  live  beyond  their 
means  and  did  so,  and  the  Micawbers  of  the  world 
were  always  being  carried  off  to  prison,  leaving  their 
families  in  tears.     Now  such  a  state  of  things  is 
unknown.     Through  the  great  private  and  public 
stores   the   middle   classes  buy   for  cash   the   best 
material  at  the  cheapest  prices  and  live  within  their 
incomes.     The   result   in   their  lives   is   matter   of 
social  history.     Why  is  it  to  be  supposed  that  any 
different  result  will  be  arrived  at  when  the  working 
classes  are  no  longer  tempted  by  a  false  system  of 
credit  ? 

"The  motive  of  credit,"  says  Dr.  Johnson,  "is 
the  hope  of  advantage.  Commerce  can  never  be  at 
a  stop  while  one  man  wants  what  another  can  supply  ; 
and  credit  will  never  be  denied  whilst  it  is  likely  to 
be  repaid  with  profit.  He  that  trusts  one  whom  he 
designs  to  sue  is  criminal  by  the  act  of  trust :  the 
cessation  of  such  invidious  traffic  is  to  be  desired  and 

70 


HOW  THE   MACHINE   WORKS 

no  reason  can  be  given  why  a  change  of  the  law 
should  impair  any  other.  We  see  nation  trade 
with  nation  where  no  payment  can  be  compelled. 
Mutual  convenience  produces  mutual  confidence 
and  the  merchants  continue  to  satisfy  the  demands 
of  each  other  though  they  have  nothing  to  dread 
but  the  loss  of  trade." 

This  argument  was  against  imprisonment  for  debt 
as  the  worthy  Doctor  saw  it  in  his  own  time,  but  it 
is  just  as  convincing  to-day  about  our  own  or  any 
other  form  of  imprisonment  for  debt.  It  goes  to  the 
principle  and  the  root  of  the  matter  and,  like  many 
another  of  his  best  sayings,  is  the  knock-out  blow 
on  the  subject. 

Further,  we  have  proved  in  our  own  country  the 
beneficial  effects  of  the  abolition  of  imprisonment 
for  debt,  and  other  countries  have  set  us  the  good 
example  of  doing  away  with  it  altogether.  In 
Germany  they  have  a  strict  system  of  enforcing 
judgments  against  well-to-do  debtors  who  seek  to 
cheat  their  creditors,  a  class  to  whom  we  are  some- 
what indulgent,  allowing  many  fraudulent  persons 
to  live  at  the  expense  of  tradesmen  by  the  simple 
expedient  of  putting  goods  in  their  wife's  name. 
But  this  procedure  is  not  available  against  working 
men,  and  the  result  is  that  they  have  to  pay  their 
way  as  they  go  along.  Dr.  Schuster,  an  English 
barrister  and  a  Doctor  of  Laws  of  the  University  of 
Munich,  explained  the  German  system  of  debt 
collecting  to  the  Commission  of  1908.  Not  only  did 
he  make  it  clear  that  the  German  workman  had,  in 
the  absence  of  imprisonment,   acquired  habits  of 

71 


THE   LAW  AND  THE  POOR 

thrift  that  our  system  discourages,  but  he  pointed 
out  that  the  insurance  funds  against  sickness  and 
accident,  the  trades  unions,  the  co-operative  societies, 
and  charitable  relief,  enabled  a  German  working 
man  to  tide  over  bad  times  without  hanging  a  mill- 
stone of  debt  about  his  neck  as  he  has  to  do  in  this 
country. 

In  the  same  way  in  France  there  is  no  imprison- 
ment for  debt  for  the  poor,  and  so  far  from  the  French 
admiring  our  debt-collecting  system  in  England  they 
think  it  so  expensive  and  futile  that  French  traders 
absolutely  give  up  all  hope  of  recovering  small  debts 
in  England  and  prefer  to  write  them  off  as  bad. 
And,  indeed,  I  have  more  than  a  suspicion  that  if  one 
could  get  an  accurate  financial  history  of  the  collec- 
tion of  a  forty  shillings'  debt  in  the  County  Court 
by  means  of  imprisonment  for  debt,  one  would  find 
that,  when  Treasury  fees,  solicitor's  costs,  and 
creditor's  time  wasted  had  been  duly  paid  for,  there 
was  very  little  balance  to  credit  in  the  plaintiff's 
ledger.  The  more  one  sees  of  the  system  the  more  is 
one  convinced  that  it  is  only  serviceable  to  those 
creditors  who  use  it  in  a  wholesale  manner  to  recover 
undesirable  debts. 

And  though  in  theory  I  can  find  no  serious  argu- 
ment against  the  abolition  of  imprisonment  for  debt, 
yet  there  is  one  practical  difficulty  in  carrying  it  out 
which  will  have  to  be  faced.  The  County  Court 
registrars  in  the  small  courts  are  unfortunately  paid 
by  fees  on  the  number  of  plaints  issued.  A  money- 
lender or  tally-man  who  cleans  up  his  books  once  a 
year  and  brings  into  Court  a  few  hundred  plaints 

72 


HOW  THE   MACHINE   WORKS 

automatically  raises  the  salary  of  the  registrar.  If 
this  debt-collecting  business  is  swept  away,  com- 
pensation for  the  disturbance  of  these  salaries  that 
have  been  calculated  on  this  basis  for  many  years 
must  certainly  be  made.  Probably  it  is  this  real 
practical  objection  that  stands  between  the  debtor 
and  freedom. 

I  am  not  alone  in  thinking  that  the  time  is  fast 
coming  when  the  inconvenience  of  having  as  the 
registrar  of  a  Court  a  solicitor  in  private  practice 
paid  by  fees  on  the  number  of  plaints  will  be  so  fully 
recognised  that  the  country  will  demand  a  sweeping 
alteration  in  the  system.  The  abolition  of  imprison- 
ment for  debt  will  give  the  Courts  time  to  entertain 
jurisdiction  for  divorce  and  other  matters  where  the 
poor  are  entitled  to  the  same  legal  favour  as  the 
rich.  When  these  reforms  are  made  it  will  be  found 
necessary,  I  believe,  that  the  registrar  of  each 
Court  or  group  of  Courts  should  be  a  whole-time 
permanent  official. 

One  other  point  remains  to  be  mentioned.  It  is 
commonly  said  of  those  who  desire  to  abolish 
imprisonment  for  debt  that  they  have  a  lower  sense 
of  honesty  than  their  opponents,  that  their  views 
tend  to  encourage  the  man  who  runs  into  debt  and 
will  not  pay  when  he  can.  For  my  part  I  care  not 
how  strict  the  law  is  made  against  dishonesty  and 
debt  resultant  from  dishonesty,  but  let  the  imprison- 
ment be  imprisonment  for  dishonestyand  not  for  debt. 
If  the  debtor  has  acted  criminally,  let  him  be  tried 
in  a  criminal  court  and  punished  for  dishonesty.  In 
the  old  days  a  County  Court  judge  had  powers  to 

75 


THE   LAW  AND   THE  POOR 

imprison  for  dishonesty,  now  he  has  only  power  to 
imprison  for  debt. 

It  is  because  I  believe  that  the  abolition  of  im- 
prisonment for  debt  will  improve  the  character  of  our 
citizens,  as  it  improved  the  character  of  the  Athenian 
citizens  more  than  two  thousand  years  ago,  that  I 
have  put  in  so  many  hours  overtime  in  the  advocacy 
of  its  abolition.  But  whilst  I  would  abolish  im- 
prisonment and  should  like  to  see  the  English  work- 
man paying  his  way  like  his  German  brother,  whilst 
I  am  eager  to  see  the  poorer  classes  freed  from  the 
misery  that  debt  and  extravagance  brings  upon 
them  to-day,  yet  no  one,  I  hope,  recognises  more 
clearly  than  I  do  the  sacred  duty  of  a  debtor  to  pay 
an  honest  debt.  Every  penny  that  he  can  save 
after  his  first  duties  of  maintenance  of  wife  and  family 
should  be  devoted  towards  the  repayment  of  debts. 
But  this  is  a  personal  obligation  on  a  man,  like 
speaking  the  truth,  or  treating  mankind  with 
courtesy,  and,  in  a  word,  is  only  a  branch  of  the  golden 
rule  of  doing  to  others  as  you  would  be  done  by. 
The  breach  of  this  obligation  ought  not,  as  it  seems 
to  me,  to  be  treated  nowadays  as  more  than  a  case  of 
a  flagrant  breach  of  good  manners,  and  I  would 
rather  imprison  a  man  who  forgets  to  shut  a  railway 
carriage  door  when  he  gets  out  on  a  winter  night  than 
a  man  who  omits  to  pay  me  the  five  shillings  he 
borrowed  yesterday.  Both  are  ill-mannered  fellows 
and  must  be  dealt  with  socially,  but  not,  I  think,  by 
imprisonment.  Debt,  except  from  misfortune,  is 
really  "  worse  form  "  than  drunkenness.  When  that  is 
generally  understood  no  Debtors  Act  will  be  necessary. 

74 


HOW   THE   MACHINE   WORKS 

And  the  right  feeling  of  a  respectable  debtor 
towards  his  creditor  seems  to  me  stated  in  very  apt 
and  beautiful  words  by  old  Jeremy  Taylor  in  one  of 
his  "  Prayers  relating  to  Justice,"  in  which  he  sets 
out  the  correct  petition  to  be  made  thus  :  "  And 
next  enable  me  to  pay  my  duty  to  all  my  friends,  and 
my  debts  to  all  my  creditors,  that  none  be  made 
miserable  or  lessened  in  his  estate  by  his  kindness  to 
me,  or  traffic  with  me.  Forgive  me  all  those  sins 
and  irregular  actions  by  which  I  entered  into  debt 
further  than  my  necessity  required,  or  by  which 
such  necessity  was  brought  upon  me  ;  but  let  them 
not  suffer  by  occasion  of  my  sin." 

And  if  all  debtors  were  moved  by  the  aspirations 
included  in  this  noble  prayer,  and  if  all  creditors 
refused  credit  to  poor  folk  unless  they  believed  them 
to  be  men  of  such  a  character  that  the  ideas  of  the 
petition  were  really  living  in  their  hearts,  then,  I 
think,  there  would  be  no  need  of  imprisonment  for 
debt  or  for  County  Court  judges  either.  Indeed,  the 
millennium  would  be  at  hand.  But  short  of  that 
great  day,  we  are  surely  entitled  to  act  as  though  the 
majority  of  mankind  preferred  right  action  to  wrong 
action  and  not  to  encourage  a  class  of  debtors  and 
creditors  whose  nexus  is  force  and  imprisonment 
rather  than  friendship  and  goodwill.  The  working 
man  should  be  able  to  say  with  Piers  Plowman  : 
"  Though  I  should  die  to-day,  my  debts  are  paid," 
and  the  law  should  help  him  to  that  end. 


75 


CHAPTER  V 

workmen's  compensation 

Your  Plea  is  good  ;   but  still  I  say,  beware  ! 
Laws  are  explained  by  Man — so  have  a  care. 

Pope  :   "  First  Satire  of  Second  Book  of  Horace." 

An  interesting  volume  might  be  written  about 
historical  litigants  and  their  deeds  of  heroism. 
There  was  the  dour  Coggs  who  let  in  his  friend 
Bernard  over  the  brandy  cask,  there  was  the  astute 
Scott  who  never  paid  Manby,  the  draper,  for  his 
wife's  dresses,  there  was  Wigglesworth  who  built 
himself  an  everlasting  name  in  the  Hibaldstow 
trespass  case,  and  the  hero  of  our  own  time,  Dickson, 
who  actually  bested  a  railway  company  in  the  matter 
of  Dutch  Oven,  the  tail-less  hound — these  and 
many  others  are  names  enshrined  in  our  dusty 
tomes  of  law,  but  if  you  would  read  them  for  mere 
delight,  has  not  Sir  Frederick  Pollock  done  our 
leading  cases  into  the  most  melodious  verse. 

If  I  were  a  bencher  I  would  like  to  promote  a 
pageant  of  these  grand  old  litigants  in  honour  of 
their  service  to  the  English  law.  I  think  my 
favourite  among  them  all  is  little  Priestley,  the 
butcher's  boy.  You  will  find  his  simple  story  in 
the  third  volume  of  "  Meeson  and  Welsby."  How 
many  know  that  it  was  at  the    Lincoln  Summer 

76 


WORKMEN'S   COMPENSATION 

Assizes  of  1836  that  the  brave  butcher's  boy  began 
it,  and  started  a  train  of  legal  thought  reaching  out 
to  the  workmen's  compensation  system  of  to-day  ? 

It  was  Priestley's  duty  to  deliver  meat,  and  one 
day  Fowler,  his  master,  sent  him  out  with  such  an 
over-load  of  beef  and  mutton  that  the  cart  broke 
down  and  poor  Priestley  broke  his  thigh.  Priestley 
brought  an  action  against  his  master,  and  the  jury 
gave  him  a  verdict  for  one  hundred  pounds,  but  on 
appeal  the  judges  would  not  have  it,  and  so  poor 
Priestley  never  got  it.  A  servant,  they  said,  is  not 
bound  to  risk  his  safety  in  the  service  of  his  master; 
he  may  decline  any  service  where  he  apprehends 
injury  to  himself. 

Lord  Abinger,  C.B.,  who  presided  in  the  Appeal 
Court,  admitted  that  there  were  no  precedents 
either  for  or  against  such  an  action,  but  he  was  hard 
put  to  it  to  explain  in  legal  terms  why  the  little 
butcher's  boy,  who  was  certainly  a  brave  explorer 
into  legal  hinterlands,  was  not  to  be  allowed  to  peg 
out  the  claim  the  jury  had  awarded  him.  His 
Lordship  was  driven  back  to  "  general  principles." 
The  most  learned  lawyer  of  our  day,  the  late  Mr. 
Danckwerts,  once  said  to  me  when  I  was  a  very 
young  man  at  the  Bar  and  talked  glibly  in  con- 
sultation about  the  "  broad  grounds  of  truth  and 
justice"  :  "  If  we  have  nothing  better  to  rest  our 
case  on  than  that,  God  help  us  in  the  Court  of 
Appeal."  He  then  proceeded  to  show  me  some 
cases  on  the  subject  which  my  ignorance  and  in- 
experience had  failed  to  discover.  And  it  was  not 
that  the  great  man  was  not  a  lover  of  truth  and 

11 


THE   LAW  AND  THE   POOR 

justice,  but  that  he  knew  that  law  meant,  not  what  he 
and  I  and  our  client  thought  to  be  truth  and  justice, 
but  what  all  generations  of  calm  thinking  men 
outside  the  dispute  ought  to  think  to  be  truth  and 
justice,  and  that  was  to  be  found  in  the  decisions  in 
similar  cases  which  he  knew  as  no  other  lawyer  ever 
did  and  about  which  I  showed  the  common  ignorance 
of  my  contemporaries. 

Lord  Abinger,  then,  having  no  cases  to  guide  him, 
played  a  lone  hand,  and  naturally  played  it  from 
the  point  of  view  of  the  man  who  held  the  cards. 
If,  he  said,  the  master  be  liable  to  the  servant  in  an 
action  of  this  kind  the  principle  of  the  liability  would 
carry  us  to  an  alarming  extent.  For  instance,  if 
a  master  put  a  servant  into  a  damp  bed  or  a  crazy 
bedstead  or  gave  him  bad  meat  to  eat  he  might 
be  liable  in  damages  to  his  servant.  "  The  incon- 
venience, not  to  say  the  absurdity,  of  these  conse- 
quences," afforded  a  sufficient  argument  against 
poor  Priestley  and  all  other  servants  in  like  case. 
Priestley  broke  his  leg  and  lost  his  case,  and  legal 
history  does  not  record  his  future  career.  But, 
though  Lord  Abinger  was  against  him,  he  might 
fairly  have  said  in  the  phrase  of  a  celebrated  and 
eloquent  Manchester  surgeon  that,  "  This  day  he 
had  lighted  a  candle  which  would  bring  forth  good 
fruit." 

Several  minor  heroes  made  legal  efforts  to  get 
behind  this  judgment,  but  the  judges  were  too 
many  for  them.  It  was  strongly  endeavoured  to 
make  masters  liable  to  their  servants  for  injury 
caused  by  the  negligence  of  a  fellow  servant,  but 

78 


WORKMEN'S   COMPENSATION 

the  judges  declared  that,  when  a  servant  enters  a 
service  he  contemplates  all  the  ordinary  risks  of  his 
work,  including  the  negligence  of  his  fellow  servants, 
and  that  allowance  is  made  for  this  by  the  master 
in  fixing  his  wages.  This  "  doctrine  of  common 
employment,"  as  it  was  called,  was,  of  course, 
largely  a  figment  of  judicial  imagination,  and  it  set 
back,  or  rather  kept  back,  the  hour  of  industrial 
reform  for  more  than  one  generation. 

There  never  really  was  a  law  of  that  kind.  It  is 
what  is  rightly  called  judge-made  law.  The  judges 
said  that  it  was  "  inconvenient  "  and  "  absurd  "  for 
masters  to  be  responsible  for  negligence  of  their 
servants.  So,  of  course,  it  was — to  the  masters 
and  in  1836  that  finished  the  matter.  Thus  it 
came  about  that  in  a  railway  accident,  if  it  was 
caused,  let  us  say,  through  the  negligence  of  the 
company's  signalman,  every  ordinary  passenger  got 
compensation  out  of  the  company,  but  the  engine 
driver,  the  stoker,  the  guard,  and  their  widows  and 
orphans  got  nothing.  Note,  however,  that  if  the 
signalman  had  belonged  to  another  company  it 
would  have  been  quite  otherwise. 

In  the  old  days  when  Druids  sat  under  oak  trees 
I  daresay  judge-made  law  was  all  very  well,  though 
no  doubt  the  personal  prejudices  of  the  Druids  were 
manifest  in  their  decisions.  But  since  the  days  of 
the  Ten  Commandments  it  has  been  recognised  that 
statute  law,  carefully  considered  and  simply  ex- 
pressed and  written  down  on  tables  of  stone  or 
otherwise,  is  a  better-class  article  for  ordering  the 
affairs  of  a  modern  community. 

79 


THE   LAW  AND   THE   POOR 

No  doubt  the  judges  of  1836,  being  men  connected 
with  the  upper  middle  classes  of  the  day,  could  not 
conceive  how  civilisation  and  social  order  could  exist 
side  by  side  with  a  wicked  system  whereby  a  master 
had  to  compensate  a  workman  injured  in  his  service. 
The  thing  was  as  incomprehensible  to  the  judicial 
mind  of  that  date  as  the  fifth  proposition  of  Euclid 
is  to  many  a  third-form  schoolboy  to-day.  Some  of 
our  judges  are  still  in  the  third  form  in  their  ideas  of 
sociology.  That  is  one  of  the  dangers  of  judge-made 
law.  It  is  bound  to  put  the  stamp  of  old-fashioned 
class  prejudice  on  its  judgments.  If  the  judges  had 
been  labour  leaders  they  would  have  discovered  an 
implied  contract  for  the  master  to  pay  compensation 
with  equal  complacency. 

The  fact  is  that  natural  justice  is  merely  justice 
according  to  the  length  of  the  judge's  foot,  as  the 
common  saying  is.  And  the  length  of  a  judicial  foot 
will  depend  on  the  evolution  of  the  judge.  That  is  to 
say,  according  as  he  and  his  ancestors  have  rested 
their  feet  cramped  in  pinched  shoes  under  the 
mahogany  of  the  wealthy  or  tramped  barefoot  along 
the  highway  in  the  freedom  of  poverty,  so  will  a 
judge's  principles  of  natural  justice  favour  the  rich 
or  the  poor. 

We  cannot  get  away  from  the  fact  that  our  judges 
make  a  great  deal  of  law.  The  idea  that  a  law  is 
somewhere  in  existence  and  that  the  judges  merely 
adopt  it  will  not,  I  think,  hold  good  for  a  moment. 
It  is,  indeed,  a  legal  fiction.  As  a  great  American 
jurist,  Professor  John  Chipman  Gray,  of  Harvard, 
asks  :    "  What  was  the  law  in  the  time  of  Richard 

80 


WORKMEN'S   COMPENSATION 

Coeur  de  Lion  on  the  liability  of  a  telegraph  company 
to  the  persons  to  whom  a  message  was  sent  ?  "  The 
answer  to  this  question  is  obvious. 

When  one  reads  from  time  to  time  of  decisions  of 
the  Courts  that  are  upheld  for  a  generation  and 
finally  overruled  it  is  against  the  truth  to  speak  of  a 
pre-existing  code  of  laws  which  the  judges  merely 
administer  and  expound.  And  the  reason  this  is  not 
openly  acknowledged  and  that  this  mysterious  bogey 
of  pre-existent  law  is  worshipped  in  our  Courts  of 
Justice  is,  as  Professor  Gray  tells  us,  that  there  is  an 
"  unwillingness  to  recognise  the  fact  that  the  Courts, 
with  the  consent  of  the  State,  have  been  constantly 
in  the  practice  of  applying  in  the  decision  of  contro- 
versies, rules  which  were  not  in  existence  and  were 
therefore  not  knowable  by  the  parties  when  the 
causes  of  controversy  occurred.  It  is  the  unwilling- 
ness to  face  the  certain  fact  that  Courts  are 
constantly  making  ex  post  facto  law."  This  is  why 
we  maintain  the  fiction  of  the  continuous  pre- 
existence  of  law. 

The  fear  among  those  in  authority  seems  to  be 
that  it  would  be  unwise  to  openly  recognise  the  real 
extent  of  the  judicial  power,  as  it  would  be  unpopular 
and  widely  rebelled  against,  and  that  under  the 
soothing  fiction  of  the  existence  of  an  imaginary 
body  of  law  and  by  the  constant  humble  assertion  of 
the  judges,  that  they  are  not  there  to  make  laws,  but 
only  to  administer  them,  the  man  in  the  street  is 
deceived  for  his  own  good.  For  myself  I  have  grave 
doubts  whether  this  juggling  with  facts  is  to  any- 
body's benefit.     If  it  were  recognised  that  in  giving 

L.P.  8l  G 


THE   LAW  AND   THE   POOR 

decisions  at  common  law,  and  also  in  the  interpreta- 
tion of  statutes,  judges  were  not  only  declarers  of 
existing  law  but  makers  of  new  law,  then  it  would 
be  possible  to  discuss  and  perhaps  control  or  direct 
the  law-making  power  of  latter-day  judges  which 
from  time  to  time  manifests  itself  in  unbalanced 
social  judgments. 

When  the  telephone  was  invented  by  Alexander 
Graham  Bell,  the  Postmaster-General  of  the  day 
claimed  that  it  was  a  species  of  telegraph  within  the 
meaning  of  the  Telegraph  Act,  1869.  Scientifically, 
of  course,  it  was  no  such  thing.  Economically  and 
in  the  interests  of  the  community  it  was  essential 
that  the  telephone  should  not  be  handed  over  to  a 
public  department  predetermined  not  to  give  it  a 
fair  chance  of  development.  Lord  Kelvin  and  others 
pointed  out  what  was  the  right  policy  in  the  matter, 
and,  if  the  affair  had  gone  to  a  parliamentary  com- 
mission, his  words  would  have  had  weight  and  a 
Telephone  Development  Act  might  have  brought 
about  excellent  results.  In  that  case  the  future  of 
the  telephone  would  have  been  settled  by 
parliamentary  law. 

It  was,  in  fact,  settled  by  Mr.  Justice  Stephen  in 
1880,  who  declared  that  the  telephone  was  a  tele- 
graph within  the  meaning  of  the  Telegraph  Acts,  1863, 
1869,  although  the  telephone  was  not  invented  or  con- 
templated in  1869.  In  this  way  its  proper  develop- 
ment in  this  country  was  arrested  for  more  than  a 
generation.  This  is  a  remarkable  instance  of  judge- 
made  law.  Why  should  an  individual  citizen  just 
as  unversed  in  science  and  business  as  the  man  in  the 

82 


WORKMEN'S   COMPENSATION 

street  have  the  right  to  enact  what  should  or  should 
not  be  done  with  an  entirely  new  invention  which 
was  not  in  existence  when  the  statute  which  he  pre- 
tends to  apply  was  enacted.  If  the  judges  decided 
that  an  aeroplane  plying  for  hire  was  a  hackney 
carriage  it  would  in  law  remain  liable  to  all  the 
statutory  hackneydom  of  carriages  until  Parliament 
otherwise  ordained.  Is  it  not  becoming  time  when 
judges,  instead  of  making  new  and  often  reckless  law, 
should  be  satisfied  with  declaring  that  in  the  case 
before  them  there  is  no  law  to  their  knowledge,  and 
it  is  for  the  Legislature  to  consider  and  enact  some. 
If  this  had  been  Mr.  Justice  Stephen's  decision  in 
The  Attorney-General  v.  The  Edison  Telephone  Co.  of 
London,  Ltd.,  how  much  better  for  all  of  us  to-day ! 
Again,  in  the  Workmen's  Compensation  Act, 
Parliament,  it  is  known,  intended  and  desired  to 
express  many  things  which  the  judicial  interpreta- 
tions of  the  Act  have  altered  and  amended  out  of  all 
recognition.  It  is  scarcely  true  that  these  interpre- 
tations are  all  of  them  due  to  the  verbal  inaccuracy 
of  the  parliamentary  draftsman,  because  one  often 
finds  the  Court  of  Appeal  taking  one  view  of  the 
meaning  of  the  words  and  the  House  of  Lords 
another.  The  real  parliamentary  object  of  the  Act 
is  now  very  difficult  to  understand  and  ascertain 
from  the  language  used  in  the  judgments  interpreting 
it.  If  law  were  really  a  science  and  the  interpreta- 
tions of  statutes  by  judges  merely  an  ascertaining 
of  parliamentary  intention,  one  would  not  expect  to 
find  such  different  interpretations  put  upon  the  same 
words  and  the  parliamentary  intention  so  openly 

83  g  2 


THE  LAW  AND  THE   POOR 

ignored.  In  America  grave  popular  discontent  has 
arisen  over  the  law-making  propensities  of  judges 
and  their  bold  refusal  to  carry  out  the  intentions  of 
the  Legislature.  We  have  no  such  widespread  feeling 
in  this  country,  nor  are  we  likely  to  have,  but,  all  the 
same,  if  we  were  to  recognise  the  law-making  power 
of  our  judges  and  openly  discuss  it  and  endeavour  to 
define  and  limit  it,  there  would  be  less  fear  in  the 
future  of  a  rupture  between  the  people  and  the  judges 
when  futurist  laws  of  far-reaching  social  reform  come 
to  be  administered  by  the  Courts.  The  lamentable 
failure  of  consistent  interpretations  of  the  Com- 
pensation Acts  is  not  calculated  to  raise  the  judiciary 
in  the  affections  and  respect  of  the  working  classes. 
This  matter  is  really  one  of  grave  importance,  for 
though  in  a  sense  and  up  to  a  point,  whatever  a 
judge  decrees  is  for  the  time  the  law — that  time  may 
only  be  short.  In  the  end  the  law  must  express  the 
wills  of  those  who  rule  society.  Professor  Vino- 
gradoff  well  says,  in  that  excellent  little  treatise 
"  Common  Sense  in  Law,"  we  ought  to  "  realise  that 
law  has  to  be  considered  not  merely  from  the  point 
of  view  of  its  enforcement  by  the  Courts  :  it  depends 
ultimately  on  recognition."  When,  then,  we  openly 
confess  that  our  judges  are  making  new  law  every 
day  we  shall  have  to  impress  on  them — especially  in 
social  matters — that  the  new  law  they  make  should 
be,  like  new  parliamentary  law,  founded  on  the  best 
aspirations  of  modern  hopes  and  thoughts  of  the 
future  life  of  our  people,  rather  than  on  the  musty 
creeds  and  traditions  in  which  the  individual  human 
beings  who  are  judges  have  unfortunately  for  the 

84 


WORKMEN'S  COMPENSATION 

most  part  been  educated.  Judge-made  law,  like 
any  other  law,  can  only  be  of  value  to  the  community 
by  popular  recognition  of  its  wisdom.  The  more  the 
judges  can  keep  to  the  real  administration  and 
interpretation  of  laws  already  existing  the  better 
for  everyone,  but  new  points  of  difference  and  a  new 
social  order  of  things  naturally  bring  before  the 
judges  cases  which  can  only  be  decided  by  their 
making  new  laws.  When  it  is  freely  acknowledged 
that  this  is  so,  not  only  the  community  but  the 
judges  themselves  will  be  called  upon  to  consider 
and  decide  the  ideals  and  principles  by  which  they 
ought  to  be  actuated  in  their  capacity  of  lawgivers. 
The  law  that  was  laid  down  to  meet  the  case  of 
the  butcher  and  his  boy  became  the  law  under  which 
every  railway  servant,  every  miner,  every  mechanic, 
every  navvy — the  huge  industrial  army  working 
under  impersonal  boards  and  committees  of  limited 
liability  companies — risked  his  life  in  his  daily  work 
at  his  own  expense.  From  1836  to  1880  men  were 
killed  and  injured  by  the  thousands  in  industrial 
work  and  there  were  no  pensions  for  the  widows  and 
orphans,  no  compensation  for  the  wounded.  More- 
over, such  a  system  discouraged  employers  from 
spending  money  on  safety  devices.  No  doubt  many 
good  and  wise  employers  did  a  great  deal  to  safe- 
guard their  men ;  equally  no  doubt,  servants,  being 
but  human,  were  often  injured  and  killed  by  their 
own  carelessness  and  recklessness.  The  deplorable 
part  of  it  was  that  the  law  had  taken  up  an  attitude 
against  the  poor  in  this  matter  and,  as  things  stood, 
it   was   to   no   company's   interest   to   spend   their 

85 


THE   LAW  AND  THE  POOR 

money  and  decrease  their  dividends  by  safeguarding 
the  lives  and  limbs  of  their  servants.  This  is  still 
so  in  America,  where  on  the  railroads  one  man  is 
killed  for  every  two  hundred  and  five  employed  and 
one  is  injured  in  every  nine.  "  War  is  safe  com- 
pared to  railroading  in  this  country,"  is  the  comment 
of  Mr.  Gilbert  Roe,  the  American  jurist. 

Of  course,  at  all  times  much  was  done  by  private 
charity  of  employers  and  others  to  help  those  who 
fell  in  the  industrial  fight. 

In  great  colliery,  shipping,  or  railway  disasters 
subscriptions  were  made,  no  doubt,  just  as  they  are 
to-day,  but  the  little  obscure  cases  that  mount  up  to 
many  thousands  in  the  annual  statistics  of  the 
industrial  killed  and  wounded  were  left  to  chance  and 
charity. 

The  Employers'  Liability  Act  of  1880  gave  certain 
workmen  limited  rights  of  action  in  special  cases. 
It  was  a  prudent  conservative  measure  brought  in 
by  a  Liberal  Government,  and,  of  course,  it  was 
predicted  that  it  would  ruin  every  industry  in  the 
country.  It  must  have  cost  industry  a  big  bill  in 
lawyer's  fees.  Every  case  under  the  Act  was 
fiercely  litigated,  and  might  go  from  the  County 
Court  through  two  Courts  of  Appeal  to  the  House 
of  Lords. 

I  do  not  like  to  write  ill  of  the  poor  statute.  It 
is  not  actually  dead,  but  moribund,  and  in  the  years 
gone  by,  when  we  were  both  young  fellows  I  had 
many  a  good  outing  at  the  old  fellow's  expense,  and 
he  did  me  very  well  indeed.  Therefore,  of  the 
Employers'  Liability  Act  of  1880  I  will  say  no  more 

86 


WORKMEN'S   COMPENSATION 

than  the  man  in  the  gallery  did  about  the  bride  when 
the  minister  asked,  "  Who  giveth  this  woman 
away  ?  "    "I  could,  guv'nor,  but  I  ain't  going  to." 

But  when  we  come  to  the  Workmen's  Compensa- 
tion Acts  that  is  another  matter  altogether.  The 
County  Court  judges  have  never  received  a  penny 
for  the  extra  work  thrust  on  them  by  these  Acts,  and 
therefore  there  can  be  no  indelicacy  or  indiscretion 
in  speaking  one's  thoughts  plainly  about  the  system. 

And  of  the  idea,  and  to  a  great  extent  of  the 
achievement,  of  Mr.  Chamberlain's  scheme — for  to 
him  must  the  praise  and  honour  be  given  for  bring- 
ing it  about — one  cannot  speak  too  highly.  The 
theory  at  the  bottom  of  it  is  exactly  the  opposite 
of  the  theory  at  the  bottom  of  the  judges'  decision 
against  poor  Priestley.  It  is  best  put  in  these 
memorable  words  of  Mr.  Asquith  : 

"  When  a  person,  on  his  own  responsibility  and  for 
his  own  profit,  sets  in  motion  agencies  which  create 
risks  for  others,  he  ought  to  be  civilly  responsible  for  his 
own  acts." 

That  is  the  Magna  Charta  of  workmen's  compen- 
sation. It  cannot  be  better  stated.  And  the 
promises  and  intentions  of  the  new  Act  were  splendid. 
For  Sir  Matthew  White  Ridley  said  that  the  Act 
would  prevent  uncertainty,  and  the  parties  would 
know  what  their  rights  were,  and  that  it  provided  a 
simple  and  inexpensive  remedy  and  would  prevent 
litigation.  Mr.  Chamberlain  pointed  out  that  up 
to  then,  in  1897,  only  12  per  cent,  of  accidents 
were  dealt  with,  but  that  he  hoped  that  now  the 
other  88  per  cent,  were  to  be  brought  in. 

87 


THE   LAW  AND  THE   POOR 

His  plan  was  so  simple.  An  injured  man  in 
certain  trades  had  only  to  ask  for  compensation,  and 
receive  it  according  to  a  fixed  standard.  State-paid 
doctors  and  arbitrators  were  to  settle  the  details  of 
the  man's  injuries  and  the  amount  to  be  paid  to 
him.  In  his  own  words,  "  We  wish  to  avoid  bringing 
in  again  under  another  name  the  old  principle  of 
contributory  negligence."  A  man  was  to  receive 
compensation  when  injured  in  the  service,  even  if 
he  himself  had  been  negligent. 

I  often  think  if  Mr.  Chamberlain  had  had  health 
and  strength  to  see  the  workmen's  compensation 
business  properly  through  he  would  have  dealt  with 
the  lawyers  who  mangled  his  excellent  scheme  much 
as  Theseus  did  with  Procrustes  when  he  met  him  on 
the  banks  of  the  Cephisus.  Procrustes,  you  will 
remember,  was  a  robber  of  Attica  with  a  quaint 
sense  of  humour  and  a  bedstead.  If  a  traveller 
asked  his  hospitality  he  invited  him  to  the  bed,  to 
which  he  tied  him.  If  his  legs  were  too  long  he  cut 
them  off,  and  if  his  legs  were  too  short  he  pulled  them 
out  to  the  right  length.  Procrustes  had  the  calm 
judicial  mind  of  the  Court  of  Appeal,  and  within  his 
narrow  limits  knew  exactly  what  he  wanted  to  do 
and  how  to  do  it.     But  it  was  rough  on  the  traveller. 

And  it  is  rough  on  a  humane,  simple,  wise  scheme 
for  the  benefit  of  the  poor  on  leaving  the  hands  of 
that  great  reformer  and  statesman,  Mr.  Chamber- 
lain, to  find  that  it  is  being  martyred  by  the  Pro- 
crustes of  the  law  so  that  it  may  fit  his  narrow 
bed  of  justice.  I  think  some  of  the  decisions  of 
the  Court  of  Appeal  would  have  been  too  many  for 

88 


WORKMEN'S   COMPENSATION 

Mr.  Chamberlain,  and  he  would  have  severed  their 
connection  with  the  workmen's  compensation  busi- 
ness as  Theseus  severed  Procrustes'  connection  with 
the  bedstead  business. 

It  is  certainly  not  putting  it  too  strongly  to  say 
that  the  judicial  body,  speaking  generally,  did  not 
love  the  Workmen's  Compensation  Act.  The  idea 
at  the  base  of  it  that  a  man  should  compensate 
another  outside  the  scope  of  contract  or  wrong  was 
to  them  out  of  harmony  with  the  English  law.  There 
never  was  a  more  honest  or  single-hearted  judge  than 
A.  L.  Smith,  who  was  Master  of  the  Rolls  when  the 
earliest  cases  came  up  for  decision  in  the  Court  of 
Appeal.  The  social  creed  of  "  A.  L."  was  something 
between  that  of  the  Church  catechism  and  the 
Sporting  Times.  He  was  beloved  by  rich  and  poor. 
His  ideal  world  was  one  where  a  good-natured 
aristocracy  would  confer  kindnesses  on  a  well- 
mannered  democracy,  who  should  receive  them  in  a 
jovial  and  grateful  spirit.  There  is  no  doubt  that  he 
endeavoured,  as  did  all  the  judges  of  the  Court  of 
Appeal,  to  rightly  interpret  its  provisions ;  there  is 
equally  no  doubt  that  the  spirit  of  many  of  the 
interpretations  placed  upon  the  draftman's  words 
did  not  give  effect  to  the  intentions  of  Mr.  Chamber- 
lain and  those  who  had  passed  the  Act.  This  one 
can  only  trace  to  the  habits  of  mind  and  social  creeds 
of  judges  like  "  A.  L."  who  were  wholly  out  of  touch 
with  the  beliefs  and  hopes  of  industrial  democracy. 
The  Act  of  Parliament  ought  not  to  have  been  sent 
to  the  Court  of  Appeal  at  all.  It  was  not  founded 
on  any  legal  principle,  it  was  an  insurance  scheme 

89 


THE   LAW   AND   THE   POOR 

that  wanted  business  men  to  work  it,  and,  as  Mr. 
Chamberlain  had  foreseen,  lawyers  and  litigation 
could  in  no  way  assist  its  working. 

It  cannot  be  gainsaid  that  the  legal  history  of  the 
Workmen's  Compensation  Act  is  not  a  thing  for 
lawyers  to  boast  about.  No  one  has  a  greater  respect 
for  the  Court  of  Appeal — and,  indeed,  for  all  my 
spiritual,  legal,  and  worldly  pastors  and  masters — 
than  I  have.  Humility  towards  those  who  are  called 
to  any  honour  amongst  us  is  my  foible.  I  admit  I 
have  but  a  poor  stomach  for  law  and  that  I  often 
find  the  learned  judgments  of  Appeal  Courts  a  little 
indigestible,  but  I  remember  the  Irishman  sampling 
the  twopenny  racecourse  pies,  and  piously  murmur 
to  myself,  "  Glory  be  to  God,  but  they're  dam 
weighty."  No  one  would  deny  the  learning, 
subtlety  and  weight  of  the  judgments  in  the  Court 
of  Appeal  on  the  Workmen's  Compensation  Act,  but, 
speaking  as  a  common  arbitrator  who  has  to  work 
the  Act  at  first  hand  and  make  it  human  food  for 
shattered  men  and  widows  and  orphans,  they  have 
not  tended  to  make  my  task  easier,  they  have  not 
simplified  and  assisted  the  scheme  as  a  compensation 
scheme,  and  they  have  not  been  in  harmony  with 
the  spoken  intentions  of  the  author  of  the  scheme. 

This,  I  think,  to  be  due,  in  the  first  place,  no  doubt 
to  the  imperfections  of  the  Act,  in  the  second, 
to  the  fact  that  the  appeals  come  before  learned 
judges  who  have  never  administered  the  Act  in  cases 
of  first  instance  and  have  had  no  practical  experience 
of  its  working,  and,  in  the  third  place,  to  the  fact 
that  to  much  of  the  higher  judicial  intellect  the 

90 


WORKMEN'S   COMPENSATION 

theory    of    workmen's    compensation    is    in    itself 
unscientific,  and  therefore  repugnant. 

Nearly  all  the  cases,  and  there  are,  I  regret  to  say, 
many,  where  the  Court  of  Appeal  has  overruled  the 
County  Court,  and  the  County  Court  judgment  has 
ultimately  been  restored  by  the  House  of  Lords,  the 
error  has  been  in  the  Court  of  Appeal  striving  to  find 
a  reason  to  hinder  the  payment  of  compensation, 
rather  than  searching  for  the  principle  which  brought 
an  admitted  injury  within  the  scheme  that  Parlia- 
ment has  made  to  compensate  the  injured.  After 
all,  the  Act  was  one  for  the  compensation  of  work- 
men, and  every  case  of  injury  that  is  found  not  to  be 
provided  for  is  a  blot  on  the  scheme. 

The  expense  of  all  these  appeals,  is  of  course,  a 
terrible  burden,  and  to  a  workman  without  a  trade 
union  behind  him  would  be  impossible.  Great  con- 
fusion has  been  caused  by  having  to  work  certain 
matters  for  considerable  periods  under  decisions  of 
the  Court  of  Appeal  that  have  afterwards  had  to  be 
dealt  with  differently  by  decisions  in  the  House  of 
Lords.  Very  likely  if  there  were  a  further  appeal  to 
a  House  of  Archangels  the  Court  of  Appeal  would  be 
upheld.  But  to  the  injured  man  in  the  works  and 
the  arbitrator  waiting  to  award  him  his  few  shillings 
a  week  what  could  be  more  pitiable  and  exasperating 
than  the  delay  and  expense  that  the  present  method 
of  working  the  Act  entails  ?  One  solid  reason  why  the 
appeals  in  workmen's  compensation  cases  should  be 
removed  from  the  Court  of  Appeal  is  that  they  cannot 
be  heard  within  a  reasonable  time.  The  Law  Journal 
of  June  13th,  1914,  states  that  there  are  seventy- 

91 


THE  LAW  AND  THE   POOR 

three  workmen  compensation  appeals  waiting  to  be 
heard,  of  which  no  less  than  ten  were  entered  in  1913. 
It  would  be  interesting  to  know  how  the  appellants 
manage  in  the  interim. 

The  Act  itself  was  difficult  enough  no  doubt  to 
make  into  a  good  working  scheme  by  those  who 
desired  to  do  it  ;  the  hundredweights  of  handsomely 
published  and  learnedly  edited  reported  decisions  as 
to  what  it  really  means  have  made  it  hopelessly 
impossible  to  comprehend  and  increasingly  difficult 
to  administer. 

To  sum  up  the  position  of  the  Act  to-day,  with  its 
myriad  encircling  decided  cases,  one  can  only  say, 
with  the  immortal  Sergeant  Arabin,  that  it  "  bristles 
with  pitfalls  as  an  egg  is  full  of  meat." 

When  you  have  an  Act  of  Parliament  that  in  at 
least  a  dozen  reported  cases  is  solemnly  decided  to 
mean  x  in  the  Court  of  Appeal  and  y  in  the  House  of 
Lords,  x  representing  "  against  the  workman  "  and 
y  "  for  the  workman,"  what  does  the  man  in  the 
street  think  about  it  ?  And  yet  I  cannot  believe 
there  is  so  much  difficulty  about  construing  the  Act 
if  the  Courts  would  all  steer  by  those  excellent  sailing 
directions  of  Lord  Halsbury  and  Lord  Davey. 

Lord  Halsbury  said  : 

'  The  broad  proposition,  of  course,  was  that  the 
Legislature  intended  that  there  should  be  compensa- 
tion given  to  every  workman  in  certain  trades  when 
an  injury  happened  to  him  in  the  course  of  his 
employment." 

Lord  Davey  said  : 

"  I  entirely  agree  with  what  has  been  said  by  my 
92 


WORKMEN'S   COMPENSATION 

noble  and  learned  friend  on  the  Woolsack  that  you 
ought  to  construe  this  Act  so  as,  as  far  as  possible, 
to  give  effect  to  the  primary  provisions  of  it." 

Now  the  primary  provision  of  the  Act  was  to 
compensate  workmen  for  injuries,  not  to  leave  them 
uncompensated,  and  to  do  the  business  promptly 
and  simply.  We  want  more  of  the  spirit  of  the  Act 
and  less  of  the  letter,  and  a  great  deal  fewer  forms 
and  orders  and  rules.  In  a  word,  more  business  and 
less  procedure.  As  a  dear  old  lady  said  to  me  when, 
after  several  efforts  to  set  her  affairs  right,  the 
registrar  and  myself  had  at  last  got  her  to  fill  up  the 
papers  necessary,  as  things  are  now,  to  get  her  case 
through  :  "I  tell  you  candidly,  Judge,  all  this 
filling  up  of  papers  and  signing  things  has  been  more 
worry  to  me  than  the  loss  of  my  old  man." 

And  I'm  sure  she  loved  her  old  man — so  what 
must  she  have  thought  of  us  and  our  Act  of 
Parliament  ? 

There  may  be  some  who  think  that  it  is  almost 
indelicate  to  discuss  such  a  subject  as  the  possible 
fallibility  of  the  higher  judiciary.  I  agree  that  it  is 
a  subject  that  can  only  be  treated  by  one  imbued 
with  that  reverence  for  existing  institutions  that 
so  happily  results  from  a  sane  middle-class  educa- 
tion. Moreover,  we  cannot  shut  our  ears  to  the 
sound  of  much  discussion  about  what  is  called 
judicial  bias  by  the  man  in  the  street.  In  America 
the  sounds  are  louder  and  clearer  than  they  are  in 
England,  and  the  problem  is  so  much  the  simpler  to 
understand — especially  for  the  onlooker.  There  are 
great  lessons  for  us  to  study  if  we  would  avoid  the 

93 


THE  LAW  AND  THE   POOR 

troubles  which  the  American  judges  have  been 
assiduously  looking  for  and  are  now  successfully 
finding.  Two  interesting  books  written  from 
different  standpoints,  Gilbert  E.  Roe's  "  Our 
Judicial  Oligarchy,"  1912,  and  Frederick  N. 
Judson's  "  The  Judiciary  and  the  People,"  1913, 
show  the  eagerness  with  which  lawyers  who  have 
human  interests  outside  the  daily  problems  of  their 
profession  are  discussing  the  great  questions  of  the 
law  and  the  poor. 

The  judiciary  in  America  is  differently  chosen 
from  that  in  this  country  and  in  some  ways  it  has 
greater  powers.  Its  instinct  and  bias  are  similar  to 
those  of  our  own  judges,  but  it  has  not  been  so 
successful  in  instilling  into  the  minds  of  the  citizens 
a  belief  in  its  infallible  honesty  of  purpose.  There 
is  no  doubt  that  in  America  there  is  a  growing  dis- 
trust of  the  integrity  of  the  Courts  and  a  feeling 
that  the  judges  in  their  sympathies  and  views  are  on 
the  side  of  wealth  and  against  the  working  man. 
Much  of  this  arises,  no  doubt,  from  circumstances 
which  do  not  obtain  here.  But  that  the  middle- 
class  instinct  exists  on  the  American  bench  even 
more  strongly  than  it  does  here  can  be  seen  in  their 
history  of  workmen's  compensation  which  to  an 
English  lawyer  is  strange  and  confused  reading. 

The  common  law  of  America  in  this  matter  is  the 
same  as  the  common  law  of  England.  The  failure 
of  Priestley,  the  Lincoln  butcher  boy,  settled  the 
law  of  America  as  completely  as  it  did  the  law  of 
this  country.  And  though  different  Legislatures 
have  endeavoured  in  different  ways  to  remedy  the 

94 


WORKMEN'S   COMPENSATION 

grievances  of  employers,  the  judges  have  made  this 
not  only  difficult,  but  in  some  cases  impossible. 
In  1906  Congress,  with  the  approval  of  the  President, 
passed  a  carefully  and  well-considered  "  Employers' 
Liability  Act  "  relating  to  common  carriers  in  the 
district  of  Columbia.  When  it  came  before  the 
Supreme  Court  of  the  United  States  this  law  was 
held  to  be  unconstitutional  by  five  judges  as  against 
four.  To  my  mind  there  can  be  no  comparison 
between  the  influence  and  common-sense  of  the 
judgments.  The  counting  of  heads  was  against  the 
statute,  but  the  expression  of  the  contents  of  the 
heads  showed  a  resultant  force  of  brain  power  in  its 
favour.  The  chief  argument  of  the  majority  was 
that  some  of  the  clauses  of  the  statute  were  "  novel 
and  even  shocking,"  just  as  Lord  Abinger  found 
poor  Priestley's  contention  inconvenient  and  absurd. 
Later  on,  in  1911,  the  Court  of  Appeal  found  the 
workmen's  compensation  legislation  of  New  York 
to  be  unconstitutional,  because  it  placed  a  "  burden 
upon  the  employer  without  any  compensatory 
benefit."  In  America  the  judges  have  been  able, 
for  reasons  that  would  certainly  have  appealed  to 
the  late  Master  of  the  Rolls  and  many  of  his  col- 
leagues, to  cancel  popular  legislation.  This  has  roused 
a  direct  conflict  in  America  on  the  subject  of  the  law 
and  the  poor,  and  there  is  a  growing  feeling  that  the 
Courts  are  not  discharging  their  duty  in  relation  to 
social  and  industrial  justice.  The  recall  of  decisions 
and  the  recall  of  judges  are  popular  cries,  and  there 
is  much  public  discussion  of  such  themes. 

These  things  are  of  interest  to  us  because  our  laws 

95 


THE   LAW  AND   THE   POOR 

and  our  poor  come  from  the  same  stock  and,  though 
we  pride  ourselves,  and  I  think  rightly,  on  the 
superiority  of  our  legal  machine,  yet  it  is  not  so 
perfect  that  we  may  not  learn  something  from  the 
troubles  and  difficulties  of  our  neighbours.  If  the 
working  class  should,  even  on  false  premises,  come 
to  a  conclusion  that  they  could  not  find  justice  in 
our  Courts  owing  to  judicial  social  myopia,  it  would 
be  a  sad  day  for  everybody.  For  my  part,  though 
I  quite  recognise  that  there  was  a  bias  in  the  late 
Lord  Abinger,  for  instance,  against  poor  Priestley's 
way  of  looking  at  things,  I  do  not  think  that  anyone 
believed  then  or  believes  now  that  he  gave  his 
judgment  in  any  unrighteous  class  spirit  adversely 
to  the  rights  of  Priestley  and  mankind.  On  the 
contrary,  I  think  he  did  his  best.  He  expressed 
what  he  and  his  fellows  believed  to  be  the  law. 

This  idea  of  "  bias  "  in  judges  is  well  worth  a 
little  consideration.  We  have  not  the  same  problem 
that  America  has  about  our  judiciary  and,  let  us 
hope,  we  never  may  have,  but  no  one  who  knows  the 
working  man  can  fail  to  have  observed  that  he  has 
been,  as  he  would  say,  colourably — I  modify  the 
adverb — "  colourably  fed  up  "  with  several  recent 
judicial  decisions. 

It  has  certainly  become  too  common  a  thing  in 
England  to  grumble  about  our  judges,  and  to  say — 
especially  when  the  costs  are  taxed  and  the  bill  is 
delivered — that  the  judge  was  biassed.  But  let  us 
remember  that  it  is  our  birthright  to  grumble.  To 
grumble,  as  Cox  pointed  out  to  Mrs.  Bouncer,  is  a 
verb  neuter  meaning  to  complain  without  a  cause.    In 

96 


WORKMEN'S   COMPENSATION 

England  we  grumble  at  all  our  best  beloved — our 
wife,  our  children,  our  weather,  our  constitution, 
the  three-year-old  that  fails  to  carry  our  money  to 
the  winning-post,  and  the  stewards  who  disqualify 
him  when  he  does.  And  when  we  grumble  at  our 
judges  and  say  there  is  bias  on  the  bench  it  is  only 
our  little  way. 

For  what  is  "  bias  "  ?  I  have  never  been  able  to 
make  out  why  the  word  should  have  a  sinister 
meaning.  Bias — as  all  good  bowlers  know — is  that 
mysterious  weight  within  a  good  "wood"  or  bowl 
whereby  the  skilful  is  enabled  to  direct  it  by  an 
arc-like  course  towards  adjacency  of  "  the  mark," 
which  is  the  historic  name  of  the  jack.  In  Lancashire, 
where  the  game  of  bowls  is  played,  as  it  should  be, 
upon  a  crown  green — and  not,  as  in  the  South,  on  a 
tame,  flat  rink — the  bias  and  the  use  of  the  bias 
make  the  glory  of  the  green.  By  means  of  bias 
scientifically  used  we  may  reach  "  the  mark  "  by 
the  circuitous  "  round  peg,"  or  play  straight  up 
against  "  the  watershed,"  as  I  once  heard  a  geologist 
among  bowlers  describe  the  slope  of  the  green. 

What  grave  problems  have  to  be  judicially 
decided  on  the  green  as  to  the  use  of  "  thumb  "  or 
"finger"  bias  before  the  "wood"  is  delivered! 
What  anxiety  is  pictured  on  the  face  of  the  bowler ! 
What  contortions  of  his  body  are  involuntarily 
indulged  in  as  the  bowl  speeds  on  its  way  and  does — 
or  more  often  does  not — carry  out  the  intentions  of 
the  bowler ! 

And  therein,  I  think,  lies  the  secret  of  the  evil 
meaning  we  have  given  to  the  word  "  bias."     We 

l.p.  97  H 


THE   LAW  AND   THE  POOR 

see  our  "  wood  "  careering  across  the  green  and  hear 
it  fall  with  a  dull  thud  on  the  path  beyond,  and 
instead  of  blaming  ourselves  we  blame  the  bias. 
Thus,  owing  to  the  alarming  prevalence  of  duffers 
on  the  green  and  in  the  greater  world  surrounding 
it,  the  word  "  bias  "  has  come  to  be  regarded  as  a 
tendency  that  leads  astray  rather  than  a  tendency 
that  keeps  straight  and  is  up  to  "  the  mark." 

And  when  I  am  asked  whether  there  is  bias  on  the 
English  bench,  I  cheerfully  reply  that  I  hope  and 
believe  there  is.  I  have  met  with  unbiassed  bowls, 
and  very  poor  "  woods  "  they  were.  I  have  met 
with  men  almost  devoid  of  bias,  and  I  never  found 
that  they  were  continuously  up  to  the  mark.  Bias 
is  as  essential  as  character  to  both  "  woods  "  and 
men.  As  far  as  I  remember  I  have  never  met  a 
judge  without  "  bias  "  and  seldom  seen  one  whose 
bias  was  not  fairly  under  control.  We  want  bias 
on  the  bench  because  we  like  to  feel  that  the  men 
who  decide  our  disputes  are  not  mere  automatic 
legal  slot  machines,  but  human  beings,  with  likes 
and  dislikes  similar  to  ours,  trained  to  hear  and 
determine  our  disputes  and  honestly  endeavouring 
to  decide  the  cases  without  fear  or  favour.  When 
judicial  bias  carries  the  judgment  beyond  "  the 
mark  "  we  grieve  not  that  the  bias  is  there  but  that 
it  has  been  injudiciously  used. 

From  the  true  bowler's  point  of  view  there  is  only 
one  bias,  a  bias  towards  things,  but  in  our  vulgar 
misuse  of  language  we  speak  of  a  bias  against  things. 
And  if  that  is  to  be  allowed  no  one  would  grudge  a 
poor  working  judge  his  right  to  a  bias  against  fraud 

98 


WORKMEN'S   COMPENSATION 

and  dishonesty,  greed  and  oppression.  Such  a  bias 
should  indeed  be  instinct  in  him  in  the  same  way  as 
a  golfer  has  a  bias  against  bunkers,  a  terrier  against 
rats,  and  a  mongoose  against  snakes.  But  even  a 
good  bias  requires  strict  and  cunning  control.  I 
remember  a  very  excellent  and  sage  judge — in  most 
matters  a  cool  fountain  of  deliberate  justice — whose 
bias  towards  purity  and  a  high  ideal  of  man's 
conduct  towards  woman  was  so  little  under  control 
that  in  cases,  and  especially  criminal  cases  relating 
to  these  affairs,  it  was  very  difficult  for  him  to 
conduct  the  case  with  justice  to  the  accused.  His 
bias  against  the  sin  over-rode  his  judgment  of  the 
crime. 

The  same  bias  is  more  often  found  in  juries.  I 
remember  a  case  in  which  my  father,  Serjeant  Parry, 
defended  a  man  named  Smethurst,  charged  with  the 
murder  of  his  wife.  He  was  admittedly  guilty  of 
bigamy,  and  so  incensed  were  the  jury  with  his 
misconduct  that  their  bias  carried  them  right  by 
the  mark  of  the  medical  testimony  and  landed  them 
in  the  ditch  of  an  unjust  verdict  of  murder.  The 
case  was  taken  up  by  John  Bright,  one  whose  bias 
against  all  evil  was  as  strong  as  any  man's.  The 
criminal  was  ultimately  punished  only  for  the  crime 
he  had  committed.  No  one  will  contend  that  a  bias 
against  immorality  is  not  a  good  bias  and  a  good 
asset  in  the  character  of  a  judge  and  a  man.  But 
the  best  bias  in  the  world  will  not  aid  you  in  attaining 
"  the  mark  "  unless  it  is  directed  by  body  and  brain 
working  together  in  harmony. 

And  if  it  be  asked  if  there  are  judges  on  the  bench 
99  H  2 


THE   LAW  AND   THE  POOR 

who  are  biassed  towards  or  against  capital  or  labour, 
railway  companies,  motor-buses,  piano  organs, 
Scotch  drapers,  moneylenders  or  other  products  of 
modern  life,  I  must  answer  in  all  honesty  that  this 
is  very  probably  the  case.  A  fact  that  seems  to  be 
lost  sight  of  in  this  insistence  on  the  immaculate 
judge  is  that,  after  all,  he  is  like  other  human  beings, 
a  forked  radish  with  a  fantastically  carved  head 
quaintly  decorated  by  a  horse-hair  wig  generously 
paid  for  by  himself  out  of  his  slender  salary.  He  is 
just  as  much  the  product  of  the  age  as  one  of  your- 
selves. He  has  toddled  about  in  the  same  nursery, 
learned  in  the  same  school,  played  at  the  same 
university  and  lived  in  the  same  society  as  the  rest 
of  the  middle  classes.  Why  should  you  expect  in 
him  a  super-instinct  towards  futurist  sociology  ? 

In  the  old  days  when  everyone  believed  in  witch- 
craft the  judges  believed  in  witchcraft.  Chief 
Justice  Hale  solemnly  laid  it  down  as  law  that  there 
must  be  such  things  as  witches  since  there  were  laws 
made  against  witches,  and  it  was  not  conceivable 
that  laws  should  be  made  against  that  which  did 
not  exist.  It  was  not,  indeed,  until  the  time  of 
George  II.  that  it  ceased  to  be  an  offence  to  endea- 
vour to  raise  the  Devil  by  magic  words  and  oblige 
him  to  execute  your  commands.  Nowadays  even 
the  Devil  himself  is  in  danger  of  disestablishment, 
though  my  conservative  views  would  lead  me  to 
maintain  that  he  is  still  entitled  to  judicial  notice, 
and  I  am  inclined  to  the  opinion  that  he  is  not  yet 
surplusage  in  an  indictment  for  perjury.  In  every 
age  your  judge  will  be  tinged  with  the  prejudices  of 

ioo 


WORKMEN'S   COMPENSATION 

his  time  and  his  class,  and  I  cannot  see  how  you  can 
expect  to  grow  middle-class  judges  in  hot-beds  of 
middle-class  prejudices  without  the  natural  forma- 
tion of  a  certain  amount  of  middle-class  bias  in  the 
thickness  of  their  middle-class  wood. 

Nor  do  I  think  among  Englishmen  anyone  resents 
such  bias  as  your  judges  display  in  their  everyday 
life.  Mr.  Justice  Grantham,  like  "  A.  L.,"  was 
undoubtedly  a  man  of  strong  conservative  bias  and 
showed  it  openly  enough  upon  the  bench,  but  he 
was  adored  on  a  working-class  circuit,  and  no  man 
was  better  beloved  by  all  who  practised  or  appeared 
before  him,  and  no  judge  strove  more  earnestly  to 
do  justice.  The  fact  is,  bias  is  recognised  among 
Englishmen  as  one  of  the  sporting  attributes  of  man 
and  is  as  necessary  to  the  instruments  with  which 
we  play  the  game  of  life  as  to  the  "  woods  "  in  our 
old-world  game  upon  the  green. 

If  there  is  any  bias  on  the  bench  that  is  popularly 
and  justly  disliked  it  is  a  bias  towards  formalism 
and  technicalities.  Our  law  of  old  got  a  bad  name 
for  that,  and  in  quiet  places  our  reputation  still 
sticks  to  us.  There  are  still  men  and  women  in  the 
English  country-side  who  think  there  is  some  sort 
of  disgrace  attached  to  a  law  court.  In  the  quiet 
County  Courts  of  Kent  and  Sussex  a  defendant 
often  complains  in  an  aggrieved  tone  at  being 
brought  to  a  "  place  of  this  kind."  It  argues  to  his 
mind  a  want  of  delicacy  in  the  plaintiff,  and  he 
states  his  case  without  the  least  hope  that  it  will  be 
decided  on  the  merits.  I  remember  an  amusing 
expression  of  this  feeling.     A  defendant,  a  cheery, 

101 


THE   LAW  AND  THE   POOR 

round,  pippin-faced  jobmaster  with  a  treble  voice 
was  sued  by  a  farmer  for  keep  of  his  horses  in  the 
farmers'  field  for  several  week-ends. 

"  Well,  I'll  tell  you  about  it,"  he  piped  diffidently 
in  answer  to  my  request  for  information,  "for  I 
might  as  well  now  I'm  here.  It  was  this  way.  I 
met  Sandy  in  Crown  Lane.  I  always  call  him  Sandy 
— you  must  excuse  me  if  I'm  wrong,  I've  never  been 
in  a  place  like  this  before — and  Sandy  says  to  me, 
'  Jim,  why  don't  you  bring  your  'orses  down  to  my 
field  for  Sunday  like  you  used  to  do  last  year  ?  ' 
Well,  I  brought  my  'orses  down  on  Sunday  and  I  did 
that  for  some  two  or  three  months  and  then  I  took 
them  away,  and  I  meets  Sandy  and  he  says,  '  Jim, 
why  have  you  taken  your  'orses  away  ?  '  and  I  says, 
'  Because  there  ain't  no  food  on  your  field  for  my 
'orses.'  He  says  to  me,  '  There's  more  food  on  my 
field  than  your  'orses  is  used  to.'  I  says,  '  Sandy, 
you  know  there's  no  feed  in  your  field  for  my  'orses.' 
He  says  to  me,  '  If  there  ain't  no  feed  in  my  field  for 
your  'orses  there's  plenty  of  recreation  for  them.' 
'  Recreation  ? '  I  says ;  '  my  'orses  don't  want  no 
recreation,  they  gets  recreation  in  the  bus  through 
the  week.'  With  that  Sandy  went  his  way  and  we 
never  exchanged  another  word  for  three  year,  and 
now  he  brings  me  to  this  'ere  place  for  sixteen 
shillings  and  I've  never  been  in  a  place  like  this 
before." 

I  explained  to  the  defendant  that  the  County 
Court  was  really  a  place  intended  for  an  affair  of  this 
nature  and  thoroughly  equipped  to  see  it  through, 
but  he  was  not  satisfied. 

102 


WORKMEN'S   COMPENSATION 

"What  right  has  he  to  bring  me  here?"  he 
complained.  "  I  never  promised  to  pay  him  any- 
thing." 

"  Was  there  no  agreement  between  you  ?  "  I 
asked. 

"  Well,  we  did  agree  about  one  thing." 
"  And  what  was  that  ?  "  I  asked  hopefully. 
"  We  agreed  that  if  we  couldn't  settle  what  I 
ought  to  pay,"  he  replied,  eyeing  me  with  doubt  and 
disapprobation,    "  that   we   should   leave   it    to    a 
respectable  man." 

Now  what  he  really  wanted  was  a  judge  full  of 
bucolic  bias  and  well  acquainted  with  vaccine  and 
equine  learning.  It  was  only  I  fancy  in  a  veterinary 
sense  that  he  considered  that  I  was  not  respect- 
able. 

And  nowadays  when  we  open  the  Courts  to  new 
applicants,  and  turn  over  great  schemes  of  work- 
men's compensation  to  judges  to  deal  with,  we  want 
judges  to  work  them  who  are  in  touch  with  the  needs 
and  lives  of  the  working  class,  not  necessarily  folk 
who  want  to  exalt  the  poor  on  to  unreal  pedestals 
and  clothe  them  with  impossible  virtues,  but  people 
who  know  how  near  their  faults  and  virtues  are  to 
those  of  the  rest  of  mankind. 

And  when  we  find  American  judges  deciding  that 
no  system  of  workmen's  compensation  is  to  be  allowed 
to  become  law,  and  when  we  note  that  the  most 
learned  judges  of  our  own  Appeal  Courts  differ 
constantly  as  to  the  meaning  of  the  words  of  our 
own  scheme,  thereby  causing  delay,  confusion  and 
expense,  it  raises  a  question  in  one's  mind  as  to 

103 


THE  LAW  AND  THE  POOR 

whether  some  far  less  exalted  Court  of  Appeal — say, 
three  County  Court  judges  who  have  to  try  these 
cases  face  to  face  with  the  men  and  women  who  are 
interested  in  their  decision — would  not  better  meet 
the  wants  of  the  community  in  carrying  out  the 
scheme  and  come  nearer  to  the  ideal  of  "  the 
respectable  man."  A  bishop  has  once  been  a  curate, 
but  a  Lord  Justice  of  Appeal  has  never  been  a 
County  Court  judge.  The  Workmen's  Compensation 
Act  is  a  practical  business  machine  of  a  complicated 
character,  and  it  is  scarcely  a  sensible  thing  that  the 
men  who  have  to  keep  it  going  should  work  under 
the  theoretical  direction  of  men  who  have  never  seen 
it  working. 

And  there  is  another  reason  why  the  appeals  in 
these  cases  should  be  removed  from  the  Court  of 
Appeal,  and  that  is  a  very  practical  one — the  Court 
is  over-crowded  and  has  no  time  to  try  them.  Even 
now  as  I  write  there  are  cases,  many  of  them  perhaps 
merely  questions  of  the  payment  of  a  few  shillings  a 
week,  which  have  been  waiting  for  many  months  to 
be  reached.  From  the  point  of  view  of  everyone 
concerned,  except  the  lawyer,  there  is  no  health  in 
this  litigation.  In  so  far  as  the  administration  of 
the  Workmen's  Compensation  Act  has  been  a  success 
it  has  been  because  insurance  companies  and 
employers  and  trade  unions  and  workmen  have 
either  kept  out  of  Court  altogether  or,  when  they 
have  got  there,  have  assisted  the  registrars  and 
judges  of  the  County  Court  to  work  the  thing  on 
business  lines  and  have  resisted  in  a  large  measure 
the  temptation  in  the  uncertainty  of  the  decisions 

104 


WORKMEN'S   COMPENSATION 

to  speculative  litigation.  There  is  still  enough  English 
common-sense  left  among  us  to  muddle  through 
most  things,  but  the  Workmen's  Compensation  Act, 
as  interpreted  in  the  Court  of  Appeal,  has  tried  it 
fairly  high. 


105 


CHAPTER  VI 

BANKRUPTCY 

"  In  a  lofty  room,  ill  lighted  and  worse  ventilated,  situate  in 
Portugal  Street,  Lincoln's  Inn  Fields,  there  sit  nearly  the  whole 
year  round,  one,  two,  three  or  four  gentlemen  in  wigs,  as  the  case 
may  be,  with  little  writing  desks  before  them,  constructed  after 
the  fashion  of  those  used  by  the  judges  of  the  land,  barring  the 
French  polish.  There  is  a  box  of  barristers  on  their  right  hand  ; 
there  is  an  enclosure  of  insolvent  debtors  on  their  left  ;  and  there 
is  an  inclined  plane  of  most  especially  dirty  faces  in  their  front. 
These  gentlemen  are  the  Commissioners  of  the  Insolvent  Court, 
and  the  place  in  which  they  sit  is  the  Insolvent  Court  itself." 

Charles  Dickens  :   "  Pickwick."     Chap.  XLIII. 

A  bankrupt  is  not  a  person  who  breaks  the  bank, 
as  is  popularly  supposed.  On  the  contrary,  he  is, 
or  ought  to  be,  by  his  derivation  a  person  whose 
bank  is  broken  by  others.  A  learned  professor  tells 
me  that  the  Florentines  of  old  had  some  sort  of 
ceremony  in  which  they  marched  to  their  insolvent 
neighbour's  office  and  broke  up  his  bank,  or  bench, 
or  money  table  to  show  the  world  that  he  was 
no  longer  commercially  sound.  Until  recently  in 
English  law  bankruptcy  was  merely  a  trader's 
remedy  designed  to  protect  an  unfortunate  business 
man  from  life-long  imprisonment  for  debt  resulting 
from  unfortunate  business  ventures.  Latterly  the 
privilege  of  bankruptcy  has  been  extended  to  every 

106 


BANKRUPTCY 

citizen  that  has  a  debt  of  fifty  pounds  and  ten  pounds 
to  pay  the  fees  necessary  to  filing  his  petition. 

But,  in  order  to  become  insolvent,  it  is  a  condition 
precedent  that  at  some  time  or  another  one  should 
have  been  solvent.  And  one  difficulty  about  apply- 
ing any  form  of  bankruptcy  laws  to  the  poor  is  that 
they  are  too  often  born  insolvent,  live  insolvent,  and 
die  insolvent.  There  must  be  many  fellow  citizens 
in  this  country  of  ours  who  never  knew  what  it  was 
for  twelve  months  of  their  life  to  have  a  living  wage 
and  be  out  of  debt.  As  long  as  we  have  imprison- 
ment for  debt  credit  of  some  kind  and  on  some  terms 
ruinous  or  otherwise  is  always  obtainable.  At  the 
present,  bankruptcy  is  almost  regarded  as  a  sign  of 
grace,  a  condition  of  honourable  martyrdom  into 
which  the  careless  and  good-natured  ones  of  the 
world  find  themselves  after  a  short  struggle  in  the 
slough  of  solvency.  To  the  rich  it  is  a  very  present 
help  in  time  of  trouble,  but  the  poor,  never  having 
been  sufficiently  solvent,  can  never  make  use  of  its 
aid. 

When  the  worker  has  a  living  wage  guaranteed 
him  by  the  State  it  will  be  necessary  to  make  him  a 
new  bankruptcy  law  so  that  the  living  wage  cannot 
be  attached  and  converted  to  the  use  of  the  Shylocks 
of  this  world.  The  law  protects  the  infant  and  the 
idiot  from  the  results  of  their  own  foolishness,  and 
we  shall  find  it  advisable  in  the  future  to  extend 
similar  protection  to  the  grown-up  idiots  and 
infants  who  are  all  too  prevalent  in  the  world. 
Antonio  was  a  normal  business  man,  but  he  was  no 
match   for   Shylock,  and,  though   no   lawyer   can 

107 


THE   LAW  AND   THE   POOR 

approve  of  the  way  in  which,  the  Courts  treated 
Shylock,  the  real  lesson  of  the  story  is  that  laws  are 
necessary  to  protect  Antonio,  the  fool,  from  Shylock, 
the  knave. 

In  order,  then,  that  the  full  blessings  of  bank- 
ruptcy may  be  made  available  to  the  poor,  we  must 
certainly  tackle  the  problem  of  the  living  wage, 
which  to  my  mind  is  the  most  urgent  social  question 
of  our  time.  So  many  things  seem  to  hang  upon  it. 
Rent,  taxation,  education,  physical  and  moral 
improvement,  eugenics,  all  the  social  discussions  of 
the  time,  land  you  back  on  the  question  of  the  living 
wage.  Sometimes,  I  think,  we  are  on  the  eve  of 
a  new  era  when  every  capable  honest  citizen  will 
have  the  same  right  to  a  living  wage  that  he  now  has 
to  free  board  and  lodging  and  stone  breaking  in  the 
workhouse.  I  would  rather  have  a  legal  right  to  a 
living  wage  than  a  vote,  unless  I  was  clear  that  I 
could  use  the  latter  to  obtain  the  former  and  many 
better  things  to  boot. 

As  a  matter  of  dull,  dry,  literary  history  all  the 
prophets  and  singers  and  poets,  from  King  David, 
Isaiah  and  Jeremiah  down  to  Carlyle,  Kingsley, 
Ruskin,  Dickens  and  Tom  Hood,  have  said  or  sung 
the  praises  of  the  living  wage.  There  are  many  who 
regard  Jeremiah  as  a  kind  of  gloomy  dean,  but  for 
my  part  I  find  him  most  encouraging.  When  he 
says  :  "  Woe  unto  him  that  buildeth  his  house  by 
unrighteousness  and  his  chambers  by  wrong  ;  that 
useth  his  neighbour's  service  without  wages  and 
giveth  him  not  for  his  work,"  I  think  that  he  is 
absolutely  right  on  the  spot.     I  cannot  believe  that 

108 


BANKRUPTCY 

it  was  his  view  that  woe  would  providentially 
descend  upon  the  man  who  paid  sweating  wages 
and  that  it  would  come  in  the  shape  of  lions  and 
bears  or  lightning  and  earthquakes ;  on  the  contrary, 
I  read  it,  that,  in  Jeremiah's  view,  it  was  the  duty  of 
citizens  to  see  that  their  fellows  did  not  behave  like 
this.  The  prophet  intended  to  tell  us  that  our  first 
duty  was  to  persuade  our  fellow  citizens  employing 
labour  to  give  their  workmen  a  living  wage,  but  if  we 
could  not  achieve  this  by  reasoning  and  exhorting 
them,  then  it  was  our  duty  to  give  such  anti-social 
churls  statutory  woe,  just  as  we  mete  out  statutory 
woe  to  the  naughty  ones  who  get  drunk  and  beat 
their  wives,  and,  indeed,  for  the  same  social  reasons. 

David  and  all  his  biblical  backers  were  as  eager 
as  Mr.  Philip  Snowden  and  his  Socialist  friends  to 
promote  the  living  wage,  and,  as  they  put  it,  to 
"  deliver  the  poor  from  him  that  is  too  strong  for 
him."  That,  in  a  phrase,  is  the  modern  problem  of 
the  living  wage.  The  trust,  the  combine,  the 
limited  company,  the  corporation  or  Government 
office  are  bound  in  the  nature  of  things  to  become 
the  spoilers  of  the  poor  and  needy  unless  there  is 
some  power  delegated  by  the  State  to  some  judicial 
authority  to  "  deliver  the  poor  from  him  that  is  too 
strong  for  him." 

But  it  is  not  sufficient  to  cite  poetry  and  Psalms 
and  the  "  Song  of  the  Shirt  "—for  then  your  Thomas 
Gradgrind  comes  along — a  man  of  realities,  sir,  a 
man  of  facts  and  calculations,  a  man  who  proceeds 
upon  the  principle  that  two  and  two  are  four  and 
nothing  over,  and  who  is  not  going  to  be  talked  into 

109 


THE  LAW  AND   THE  POOR 

allowing  for  anything  over — Thomas  Gradgrind 
shakes  his  square  finger  at  you  and  says  :  "  How 
are  you  going  to  do  it  ?  "  And  I  agree  that  Grad- 
grind is  deserving  an  answer.  I  do  not  say  we  must 
wait  until  we  convince  him,  for  Gradgrinds  are 
obstinate,  stubborn  fellows,  but  we  must  satisfy 
the  majority  that  we  have  a  fair  answer  to  his  objec- 
tions and  a  practical  programme  to  propose.  The 
problem  cannot  be  shirked  for  ever.  Even  in  the 
prophet  Carlyle's  day  it  was  a  matter  in  regard  to 
which  "  if  something  be  not  done  something  will 
do  itself  one  day  and  in  a  fashion  that  will  please 
nobody." 

And  shortly  the  way  in  which  it  will  come  about 
is  by  voluntary  conciliation,  the  erection  of  joint 
boards  of  employers  and  workmen  with  a  right  of 
appeal  to  a  business  legal  tribunal — something  akin 
to  the  Railway  Commission — which  shall  have 
power  to  make  and  enforce  a  decree  to  the  worker  of 
at  least  so  much  of  his  fair  share  of  an  industry  as 
shall  amount  to  a  living  wage.  I  can  see  nothing 
revolutionary  in  this  proposal.  It  really  only 
follows  out  the  trend  of  modern  legislation.  If  a 
man  has  a  smoking  chimney,  or  pollutes  a  river,  or 
goes  about  in  public  with  an  infectious  disease,  we 
fine  or  imprison  him  for  his  anti-social  misconduct. 
Surely  a  man  who  pursues  an  industry  that  does  not 
make  a  living  wage  for  the  workers  in  it  is  equally 
an  enemy  of  the  people,  to  be  dealt  with  as  such  by 
the  law !  As  Mr.  Justice  Gordon  laid  it  down  in 
the  Australian  Labour  Courts  :  "If  any  particular 
industry  cannot  keep  going  and  pay  its  workpeople 

no 


BANKRUPTCY 

a  living  wage  it  must  be  shut  up."  Some  day  that 
will  be  the  law  of  England.  No  one  can  deny  the 
common  sense  of  it. 

A  very  encouraging  sign  of  the  times  is  that  both 
sides  are  discovering  the  uselessness  of  strikes.  In 
Mr.  Snowden's  frank  words,  "  a  strike  never  did 
much  substantial  gain  to  the  strikers."  It  is  not 
only  that  the  strike  or  lock-out  is  a  crime  against 
helpless  women  and  children,  that  it  wastes  the 
substance  and  savings  of  employers  and  employed 
and  embitters  their  relations  for  a  generation — all 
that  we  knew  before ;  the  new  and  comforting 
message  is  that  the  strike  does  not  "  get  there,"  it 
does  not  suceed,  and  therefore,  as  Mr.  Snowden 
says,  "  just  as  war  between  nations  cannot  be 
defended  either  ethically  or  economically,  so  labour 
disputes  are  indefensible." 

And  there  are  other  indications  that  conciliation 
and  agreement  in  labour  matters  are  to  have  a  fair 
trial.  Already  in  the  railway  world  an  interesting 
experiment  has  been  made.  I  have  seen  enough  of 
it  in  the  working  to  know  that  it  is  not  such  a 
spavined  animal  as  some  of  our  political  jockeys 
would  have  us  believe.  When  the  railway  concilia- 
tion boards  were  set  up  the  employers  and  workmen, 
where  it  was  possible,  agreed  upon  an  independent 
chairman  to  sit  with  them  in  case  there  was  a  dead- 
lock. Several  boards  of  different  companies  invited 
me  to  undertake  this  honourable  position.  I  need 
hardly  say  that  I  fancied  myself  not  a  little  at 
receiving  such  flattering  invitations,  and  meeting 
a  friend,  who  was  an  eminent  railway  solicitor,  I 

in 


THE  LAW  AND   THE  POOR 

told  him  the  news — not,  I  suspect,  without  a  note  of 
pardonable  triumph  in  the  phrasing. 

"  What !  "  he  cried ;  "do  you  mean  to  say  that  the 
companies  and  the  men  have  agreed  upon  you  as 
chairman  ?  " 

"  That  is  so,"  I  replied,  with  dignity,  being  a  little 
hurt  at  his  surprise  and  astonishment. 

"  Well,    I'm .     However   you'll    never    have 

anything    to    do,"    he    added    with    a    grunt    of 
satisfaction. 

"  And  why  not  ?  "  I  asked. 

"  Because,"  he  replied,  with  great  deliberation, 
"  if  they  could  agree  about  you  they  could  agree 
about  anything." 

I  thanked  him  for  the  compliment,  but,  analysing 
the  saying  since,  I  am  not  so  sure  that  the  commen- 
dation I  accepted  was  really  proffered  to  me.  Be 
that  as  it  may,  it  has  turned  out  to  be  true.  On  the 
few  occasions  on  which  my  services  were  required, 
I  have  found  that  things  were  capable  of  adjustment 
and  settlement  owing  to  the  excellent  good  feeling 
on  each  side  and  the  real  endeavour  made  by  every- 
one to  try  and  understand  the  other's  point  of  view. 
This  is  where  the  independent  chairman  is  of  real 
service.  In  explaining  to  his  virgin  mind  the 
difficulties  of  the  case,  every  point  in  it  has  to  be 
discussed  and  explained  anew,  and  in  this  way  the 
weaker  positions  of  the  argument  are  made  clearer 
to  those  who  are  defending  them.  Thus  it  becomes 
easier  to  give  way  about  some  matter  of  detail,  and 
concession  breeds  concession. 

Without   making   too   much   of   my   own   small 
112 


BANKRUPTCY 

experience,  it  bears  out  my  theoretical  expectation, 
and  I  am  satisfied  that  a  conciliatory  court  for  trade 
disputes  is  a  live  business  proposition,  calculated  to 
save  employers  much  unnecessary  woe,  and  that  if 
Jeremiah  had  thought  of  it,  he  would  have  proposed 
to  set  one  up  as  a  practical  step  towards  the  living 
wage. 

Until,  then,  we  have  established  a  living  wage  for 
the  worker,  the  question  of  his  bankruptcy  is  in  a 
large  measure  academic.  At  present  bankruptcy, 
like  divorce,  is  rightly  regarded  as  a  luxury  for  the 
well-to-do.  I  know  that  to  some  minds  the  word 
"  bankruptcy  "  connotes  poverty,  but  if  you  look 
into  the  facts  and  history  of  the  matter,  you  will  find 
that,  though  bankruptcy  may  on  occasion  lead  to 
poverty,  a  poor  man  never  does,  or  can,  become  a 
bankrupt. 

People  fail  to  the  tune  of  five  or  six  million  pounds 
a  year,  but  when  you  analyse  the  list  of  the 
insolvent  you  will  not  find  many  poor  folk  among 
them.  There  are  lords  and  gentlemen,  solicitors 
and  stockbrokers,  merchants  and  manufacturers, 
builders  and  farmers,  and  butchers,  bakers,  and 
candlestick  makers. 

But  the  nearest  you  will  find  to  poor  people  are 
lodging-house  keepers  and  coffee-house  and  fried  fish 
shop  proprietors.  These  are  precarious  trades,  and 
the  working  man,  being  a  good  sportsman,  likes  to 
have  a  gamble  in  them  with  his  savings.  In  this 
way  he  joins  the  aristocracy,  and  becomes  an 
eligible  bankrupt.  But  the  labourer  and  artisan, 
the  real  working   men,   have  no   more  chance   of 

l.p.  113  1 


THE  LAW  AND  THE   POOR 

bankruptcy  than  they  have  of  election  to  the 
Athenaeum  or  the  Carlton. 

Bankruptcy  is  a  legal  status  jealously  guarded  by 
the  caste  to  which  it  belongs.  The  poor  man  reads 
in  the  paper  of  builders  and  merchants  failing  for 
their  thousands,  of  well-paid  accountants  carefully 
investigating  the  history  of  their  financial  fall ;  he 
puts  his  head  into  the  Registrar's  Court  and  hears 
an  amiable  official  receiver  sympathetically  tracing 
the  career  of  the  well-groomed  bankrupt  in  front  of 
him  ;  he  sees  the  judge  present  the  unhappy  fellow 
with  a  clean  slate,  from  which  all  his  debts  are 
wiped  away,  and  hears  him  announce  to  the  unfortu- 
nate insolvent  the  date  upon  which  the  law  will  allow 
him  to  start  becoming  insolvent  again. 

And  the  working  man  thinks  to  himself  of  the 
twenty  or  thirty  pounds  that  he  owes,  and  how 
pleasant  it  would  be  if  an  accountant  would  add  it 
up  and  a  judge  tell  him  that  he  need  not  worry  any 
more  about  it ;  but  when  he  begins  to  inquire 
further  into  the  subject  he  finds  that  bankruptcy 
is  one  of  the  good  things  of  this  world  that  he  cannot 
afford. 

Bankruptcy,  successful  bankruptcy,  is  not  so 
easy  of  achievement  as  you  might  think.  It  is  not 
everyone  who  knows  how  to  become  a  bankrupt. 
There  are  a  lot  of  big,  expensive  law  books  written 
on  this  subject  by  clever  fellows  who  spend  their 
lives  soothing  the  bankrupt's  last  hours  and  winding 
him  up  according  to  law  and  order,  with  costs  out 
of  the  estate,  but  you  need  not  study  these  to  learn 
how  to  become  a  bankrupt.     Most  bankrupts  are 

114 


BANKRUPTCY 

pig-headed  fellows,  and  achieve  bankruptcy  in  their 
own  foolish  amateur  way.  They  read  the  books 
about  it  afterwards. 

To  begin  with,  you  certainly  want  money,  or  at 
least  an  overdraft  and  plenty  of  credit.  Intend- 
ing bankrupts  generally  wear  very  good  clothes  ; 
especially  are  they  particular  about  the  shine  of 
their  silk  hat.  Bankers  and  intelligent  business  men 
have,  in  all  ages,  given  credit  to  top  hats,  white 
waistcoats,  and  gold  watch  chains.  The  poor  man 
has  none  of  these,  and  therefore  cannot  obtain  that 
overdraft  which  is  one  of  the  first  essentials  of 
bankruptcy. 

The  bankrupt  has  a  curious  affection  for  jewellery. 
He  buys  large  quantities  of  this  commodity,  and 
sells  it  again  at  a  loss  to  stave  off  the  evil  day  and 
add  to  his  deficiency.  I  read  in  the  Board  of  Trade 
reports  of  a  failure  due  to  gambling  and  extrava- 
gance, in  which  the  debtor  purchased  jewellery  for 
£40,000  and  sold  it  the  same  day  for  £10,000.  If  he 
had  been  a  poor  man  I  think  maybe  the  police 
would  have  tried  to  find  a  law  to  give  him  a  rest 
cure  for  a  few  months  in  one  of  His  Majesty's  gaols, 
but  he  failed  for  over  £70,000,  and  the  probable 
value  of  his  assets  was  £175. 

Perhaps  he  was  a  bit  of  an  aristocrat.  Anyhow 
the  police  left  him  alone.  I  cannot  even  tell  you  his 
name,  for  the  kind  Inspector-General  in  Bankruptcy, 
fearful  of  causing  pain  to  the  sorrowing,  never  tells 
you  the  names  and  addresses  of  the  people  whose 
history  he  writes.  He  speaks  of  him  as  "  No.  1512 
of  1911."     The  poor  fellow  had  no  occupation,  his 

115  1  2 


THE   LAW  AND  THE  POOR 

cruel  father  only  allowed  him  a  miserable  thousand 
a  year,  so  what  could  No.  1512  do  but  run  into 
debt  ?  The  wonder  is  that  he  failed  for  so  little  as 
£70,000. 

No.  614  of  1907  was  not  much  of  a  record,  but  he 
will  do  as  another  example.  He,  too,  had  no 
occupation  except  qualifying  for  a  bankrupt  and 
ultimately  failed  for  £21,292  with  assets  nil.  He 
started  his  wild  career  at  the  age  of  nineteen  with 
expectations  of  a  fortune  when  he  got  to  the  age  of 
twenty-five.  With  that  charming  simplicity  and 
cunning,  characteristic  of  the  whelps  of  the  vulgar 
rich,  he  proceeded  to  moneylenders,  and  at  the  date 
of  the  receiving  order  had  created  charges  exceeding 
£430,000  on  his  reversion  of  such  complexity  that 
every  mortgagee  disputed  the  right  of  every  prior 
incumbrancer.  This  would  not  matter  so  much,  as 
all  these  victims  were  doubtless  moneylenders  and 
a  lot  of  the  money  would  go  to  estimable  lawyers 
to  smooth  out  the  wrinkled  parchment  muddle,  but 
then  at  the  back  of  all  those  were  the  unsecured 
creditors,  poor  tradesmen  and  others.  They  were 
to  get  nothing. 

No.  1 1 03  of  1908  was  an  even  smaller  fellow. 
This  debtor  was  educated  at  Oxford  and,  on  leaving 
the  university  in  1901,  he  was  in  debt  to  the  extent 
of  £4,500.  I  have  a  passion  for  statistics,  and  I 
should  like  to  see  a  balance  sheet  showing  on  one 
side  the  expenses  of  the  four  thousand  Oxford  under- 
graduates during  three  years  of  residence,  and  on  the 
other  side  the  earnings  of  the  same  four  thousand 
undergraduates  for  a  similar  period  in,  say,  fifteen  or 

116 


BANKRUPTCY 

twenty  years  afterwards.  I  fear  it  would  not  be 
much  of  an  advertisement  for  Oxford.  No.  1103's 
father  paid  up  his  creditors  to  the  extent  at  least  of 
fifteen  shillings  in  the  pound,  and  gave  him  a  fresh 
start.  He  was  in  trouble  again  in  1906,  through 
betting  and  extravagance,  and  failed  for  £20,392 — 
assets  £1,103. 

The  French  have  an  excellent  system  of  declaring 
these  youngsters  to  be  prodigals  and  putting  them 
under  a  committee  as  we  do  lunatics  with  property, 
and  no  doubt  in  money  matters  they  are  akin  to  the 
insane,  and  are  really  to  be  pitied  and  cared  for. 
But  to  the  poor  it  must  be  strange  to  see  debt  and 
the  disaster  of  debt  causing  such  different  results  in 
law  to  different  classes  of  people,  and  it  must  be  hard 
for  them  to  understand  why  they,  too,  are  not  fit 
subjects  for  the  blessings  of  bankruptcy  rather  than 
gaol. 

And  what  am  I  to  say  to  my  friend  Joseph  the 
signalman,  at  twenty-nine  shillings  a  week,  when  he 
shows  me  some  of  these  spicy  stories  of  the  Inspector- 
General's  report  cut  out  of  the  local  paper. 

"  What  has  it  all  got  to  do  with  you,  Joseph  ?  " 

"  Well,"  he  says,  "  I've  been  thinking  why  should 
not  I  do  a  bit  of  a  failure  like  No.  1512  of  1911  ?  I 
can  buy  a  gramophone  and  a  watch,  and  a  few  lucky 
wedding  rings  and  a  family  Bible,  and  a  plush 
drawing-room  suite  on  the  instalment  system,  and 
I  can  borrow  a  pound  or  two  on  a  promissory  note. 
Of  course  betting  and  beer  cannot  be  done  on  the 
nod  in  my  class  of  life,  but  one  can  owe  a  bit  of  rent, 
and  altogether  I  see  my  way  to  do  a  failure  up  to, 

117 


THE  LAW  AND  THE  POOR 

say,  thirty  pounds.     Why  shouldn't   I   go   bank- 
rupt ?  " 

"  Well,  the  answer  is  very  simple,"  I  have  to  tell 
him.  "  The  rules  of  the  game  are  made  by  the  rich 
for  the  rich,  and  not  for  you,  Joseph,  at  all.  Oh, 
dear,  no  !  In  the  first  place  you  must  have  a  debt 
of  fifty  pounds." 

"  Well,"  replies  Joseph,  "  I  think  I  could  bring  it 
as  high  as  that  if  I  tried." 

"  And  next  you  must  have  a  creditor  to  make  you 
bankrupt,  and  unless  he  thinks  there  is  some  stuffing 
in  you  or  wool  on  your  back  a  creditor  is  not  going 
to  waste  his  time  and  money  making  the  likes  of  you 
bankrupt." 

"  But,"  says  my  hopeful  friend  Joseph,  "  what  is 
the  meaning  of  a  chap  filing  his  own  petition  ?  I've 
often  read  of  that.  Why  shouldn't  I  file  my 
petition  ?  " 

"  My  dear,  simple  fellow,  you  surely  do  not  think 
the  clever  ones  of  the  earth  who  look  after  your 
interests  have  not  thought  all  that  out  ?  You  take 
your  petition  to  the  Bankruptcy  Court  and  see  what 
happens.  You  will  find  the  usual  janitor  at  the 
door  with  his  open  palm.  Of  course  you  are  expected 
to  pay  a  fee — you  have  learned  enough  about  English 
Courts  to  know  that  you  do  not  get  '  owt  for  nowt ' 
in  any  of  them.  But  in  the  Bankruptcy  Court,  my 
young  friend,  they  foresaw  you  coming  along  and 
they  have  put  the  figure  too  high  for  you.  Ten 
pounds,  money  down  !  That's  the  price.  If  you 
want  to  set  all  the  pretty  little  figures  working,  the 
official  receiver  smiling,  the  registrar  writing  it  all 

118 


BANKRUPTCY 

down,  and  the  judge  nodding  on  the  bench,  and  the 
Board  of  Trade  publishing  statistics  about  you — ten 
pounds  into  the  slot,  my  young  friend,  and  the  figures 
will  work. 

"  But  you  have  not  got  ten  pounds,  Joseph,  and 
you  could  not  raise  the  sum  if  you  tried,  so  you  will 
have  to  go  back  to  work  and  pay  twenty  shillings  in 
the  pound  somehow.  And  don't  go  and  sell  your 
gramophone  and  drawing-room  suite,  for  they  are  on 
the  hire  system,  and  that  would  put  you  in  the  dock, 
where  I  hope  you  may  never  be.  No.  1512  bought 
his  £40,000  worth  of  jewels  out  and  out,  or  said  he 
did,  and  it  was  a  Paris  jeweller,  anyhow,  and  I 
believe  he  was  one  of  the  '  nuts  '  and  not  your  class 
at  all,  Joseph,  but  you  may  take  it  from  me  that  you 
must  not  expect  to  be  treated  as  he  was.  Have  I 
said  enough,  my  dear  friend  ?  Are  you  quite 
satisfied  ?  Bankruptcy,  I  can  assure  you,  is  not  for 
Joseph.     Oh,  dear,  no  !  " 

It  is  only  fair  to  the  law  and  to  the  memory  of 
Mr.  Chamberlain,  who  made  the  law,  to  remember 
that  when  he  introduced  the  Bankruptcy  Act  of 
1883  he  invented  a  system  of  small  bankruptcies 
called  administration  orders,  whereby  poor  folk 
whose  debts  do  not  amount  to  fifty  pounds  may  make 
a  composition  with  their  creditors.  Let  me  set 
down  in  his  own  words  exactly  what  he  intended  and 
tried  to  do.  I  quote  from  his  speech  on  the  second 
reading  of  the  Bill : — 

"  What  he  now  desired  to  call  attention  to  was  the 
clause  which  followed  and  which  dealt  with  the  case 
of  debtors  who  owed  less  than  fifty  pounds.     That 

119 


THE  LAW  AND  THE  POOR 

was  the  class  of  debtors  who  filled  our  County  Courts 
with  plaints  and  added  very  considerably  to  the 
number  of  the  occupants  of  our  gaols.  It  had  always 
been  felt  to  be  a  great  hardship  that  while  a  large 
debtor  could  with  ease  relieve  himself  of  all  his 
liabilities  he  or  his  trustees  might  be  prosecuting  a 
poor  man  for  thirty  or  forty  shillings,  and  the  latter 
might  be  sent  to  prison  without  having  any  means 
provided  for  him  to  make  a  composition  with  his 
creditors,  and  when,  after  satisfying  the  debt,  he 
came  out  of  gaol  he  was  still  liable  in  full  to  all  his 
other  creditors." 

"  But  the  more  important  provision  which  he  had 
made  for  dealing  with  this  subject  was  that  under 
which  a  County  Court  judge  might  in  future  make 
an  order  for  the  payment  by  a  debtor  who  owed  less 
than  fifty  pounds  by  instalments  or  otherwise  of  all 
or  any  part  of  his  debts.  A  debtor  who  was  brought 
up  on  a  judgment  summons  or  a  County  Court  plaint 
might  state  that  he  was  indebted  to  other  persons, 
might  give  in  a  schedule  of  his  debts  and  propose  an 
arrangement  for  discharging  them,  and,  if  the  Court 
thought  it  reasonable,  it  might  at  once  confirm  it, 
so  that  a  small  debtor  would  thus  be  in  exactly  the 
same  position  as  a  large  debtor  who  had  succeeded 
in  making  a  composition  with  his  creditors  or  in 
arranging  for  a  scheme  of  liquidation.  Although  he 
had  not  abolished  in  all  cases  imprisonment  for 
debt,  yet,  if  these  provisions  became  law,  it  could  no 
longer  be  said  that  any  inequality  existed  as  between 
rich    and    poor.     The    resort    to    imprisonment    to 

120 


BANKRUPTCY 

secure  payment  would  be  much  easier,  and  a  large 
discretion  would  be  vested  on  the  judges  to  arrange 
for  the  relief  to  the  small  debtor  by  a  reasonable 
composition." 

I  have  set  this  out  at  length  because  it  is  enor- 
mously encouraging  to  know  that  thirty  years  ago 
Mr.  Chamberlain's  ideal  was  to  destroy  the  County 
Court  imprisonment  for  debt  and  to  give  the  working 
man  who  fell  into  debt  a  bankruptcy  system  similar 
to  that  of  the  rich. 

Why  did  it  fail  ? 

Well,  it  has  not  been  wholly  a  failure,  but  it 
certainly  has  not  fulfilled  all  its  author's  generous 
hopes.  In  the  first  place  the  fifty-pound  limit  is  too 
small,  another  reason  of  its  non-success  is  that  it  is 
a  voluntary  system  of  some  complication  in  com- 
petition with  the  simple,  brutal  method  of  the 
judgment  summons  and  imprisonment  for  debt, 
but  probably  its  unpopularity  is  chiefly  due  to  the 
fact  that  the  Treasury  has  always  deliberately 
crabbed  it  by  imposing  harsh  and  unreasonable 
fees. 

No  system  of  this  kind  will  be  successful  without 
compulsion  and  some  clerk  of  the  Court  in  the 
position  of  an  official  receiver  to  advise  the  poor  how 
to  go  about  the  matter  and  to  see  that  the  order 
made  is  carried  out.  Such  a  system  is  in  vogue  in 
some.  Courts  and  has  proved  a  success  in  mitigating 
imprisonment  for  debt  and  holding  out  a  helping 
hand  to  those  who  were  drifting  into  insolvency. 
But  the  system  as  it  stands  depends  too  much  on 
the  initiative   of  the   County  Court   judge   or  the 

121 


THE  LAW  AND  THE   POOR 

registrar.  Thus  we  find  on  a  working-class  circuit 
like  Oldham,  Rochdale,  etc.,  there  will  be  over  six 
hundred  orders  made,  whereas  in  Whitechapel  only 
two  orders  are  made  in  the  same  year.  Systems 
favourable  to  the  working  classes  flourish  more 
vigorously  in  the  North  than  in  the  South. 

You  must  not  suppose  the  working  man  is 
allowed  to  cast  off  his  debts  in  the  wholesale  way  in 
which  the  thorough-bred,  blue-blooded  bankrupt 
does.  Not  a  bit  of  it.  The  order  made  against  him 
is  that  he  shall  pay  his  debts  to  the  extent  of  so 
many  shillings  in  the  pound  at  so  many  shillings  a 
month.  If  he  does  not  carry  out  the  order  there  is 
prison  for  him  for  every  instalment  he  fails  to  pay  if 
the  judge  so  orders,  or  at  the  best  his  order  is 
rescinded  and  all  his  creditors  are  down  on  him 
again  as  before. 

But  the  main  drawback  to  the  business  is  the 
extortionate  fees  charged  by  the  Treasury.  Here  is 
a  poor  devil  with  twenty-five  shillings  and  a  wife 
and  family  and,  let  us  say,  thirty  pounds  of  debt, 
and  the  judge  gives  him  an  administration  order 
to  pay  ten  shillings  in  the  pound  at  five  shillings  a 
month.  The  Treasury  are  at  once  down  on  him. 
Their  fees  are  always  calculated,  not  on  the  dividend 
paid,  but  on  the  total  amount  of  the  debts,  and  they 
insist  in  every  case  on  two  shillings  in  the  pound. 
Thus,  in  the  case  of  the  man  with  thirty  pounds  of 
debt,  the  Treasury  want  three  pounds  money  down 
before  the  creditors  get  anything.  In  191 1  the 
Treasury  took  no  less  than  £13,000  in  these  fees. 

In  this  matter  we  cannot  acquit  the  law  of  the 
122 


BANKRUPTCY 

offence  of  grinding  the  poor.  Imagine  a  wealthy 
country  like  this  squeezing  the  insolvent  poor  out 
of  their  weekly  pittances  instead  of  helping  them  to 
pay  their  debts.  I  call  it  a  wicked  policy  for  the 
State  to  throw  impediments  in  the  way  of  a  working- 
class  man  who  is  struggling  out  of  the  back-waters  of 
debt  into  the  fairway  of  solvency. 

Do  not  let  us  shut  our  eyes  to  what  it  means,  for 
the  Treasury  is  only  our  servant  and  ought  to  be 
doing  our  will,  and  the  responsibility  is  yours  and 
mine.  For  we  know  that  every  penny  of  that  £13,000 
comes  out  of  the  mouths  of  hungry  women  and 
children  or,  at  the  best,  robs  them  of  so  many  boots 
and  so  much  clothing. 

What  fees  do  the  Treasury  receive  from  No.  15 12 
of  191 1  and  his  like  ?  Two  shillings  in  the  pound 
on  the  rich  man's  £70,000  of  debt  might  enable  the 
Chancellor  to  treat  the  poor  more  leniently.  But 
the  rich  man  pays  his  entrance  fee  of  ten  pounds  and 
is  a  life  member  of  the  Bankruptcy  Club.  The 
Treasury  never  thinks  of  touching  him  for  a 
subscription  of  two  shillings  in  the  pound  on  the 
amount  of  his  debts.  Some  day  there  will  come 
along  a  Chancellor  of  the  Exchequer  who  will  be  a 
Good  Samaritan,  and  the  Treasury  will  cease  to 
strip  the  poor  debtor  of  his  raiment  to  the  tune  of 
£13,000  a  year. 

Of  course  it  is  very  easy  to  blame  a  public  depart- 
ment and  throw  ugly  words  at  the  lords  thereof. 
One  gets  into  a  bad  habit  of  blaming  those  in  high 
places  for  the  inequalities  of  things.  I  wonder  if  I 
were  Chancellor  whether  I  should  get  rid  of  that 

123 


THE   LAW  AND  THE   POOR 

shameful  tax  on  the  poorest  of  the  poor.  Perhaps 
not.  After  all,  the  Good  Samaritan  was  speculating 
with  his  own  oil  and  investing  his  own  twopence. 
The  oil  and  the  twopence  of  the  Exchequer  belong 
to  the  public  and  must  be  dealt  with  according  to 
the  rules  of  statecraft. 

And  there  may  be  some  grave  national  danger 
beyond  my  humble  ken  that  makes  it  necessary 
for  England  to  dirty  her  hands  with  that  £13,000. 


124 


CHAPTER   VII 

DIVORCE 

"  We  have  thought  to  tie  the  nuptial  knot  of  our  marriages 
more  fast  and  firm  by  having  taken  away  all  means  of  dissolving 
it  ;  but  the  knot  of  the  will  and  affection  is  so  much  the  more 
slackened  and  made  loose,  by  how  much  that  of  constraint  is 
drawn  closer  ;  and  on  the  contrary,  that  which  kept  the  marriages 
at  Rome  so  long  in  honour  and  inviolate,  was  the  liberty  every 
one  who  so  desired  had  to  break  them  ;  they  kept  their  wives  the 
better  because  they  might  part  with  them  if  they  would  ;  and  in 
the  full  liberty  of  divorce,  five  hundred  years  and  more  passed 
away  before  anyone  made  use  on't." 

Michel  de  Montaigne  :   "  Essays." 
Translated  by  Charles  Cotton.     Book  II.,  Chap.  XV. 

Nearly  four  hundred  years  ago  Thomas  Cranmer, 
Archbishop  of  Canterbury,  was  burned  at  the  stake 
over  against  Balliol  College,  Oxford.  You  remember 
how  a  few  days  before,  in  a  moment  of  weakness,  he 
had  signed  a  recantation,  and  how  when  the  fire 
was  kindled  and  the  flames  licked  up  the  faggots 
they  revived  the  spirit  of  the  martyr  within  him, 
and  he  thrust  his  right  hand  into  the  flames,  crying 
out :  "  This  was  the  hand  that  wrote  it ;  therefore 
it  shall  first  suffer  punishment."  But  if  that  hand 
had  offended  in  matters  spiritual,  in  practical 
matters  it  had  done  good  work  for  the  State. 

Cranmer's  "  Reformatio  Legum  Ecclesiasticarum  " 
contains  some  of  the  best  sense  about  divorce  law 

125 


THE  LAW  AND   THE   POOR 

reform  that  I  have  ever  read.  Its  proposals  are 
moderate,  sensible  and  in  harmony  with  the  religious 
ideas  of  his  day,  which  seem  to  have  been  broader 
and  more  rational  than  those  of  to-day.  Had 
Edward  VI.  lived  a  little  longer  Cranmer's  treatise 
would  have  been  enacted  as  the  statute  law  of  the 
country.  It  is  pitiful  to  think  of  the  four  hundred 
years  of  misery  and  injustice  under  which  the 
citizens  of  this  country  have  suffered  in  matters 
relating  to  divorce  owing  to  a  change  of  Government 
in  1553.  The  Scots  did  better  out  of  the  Reforma- 
tion and  have  had  a  more  or  less  satisfactory  divorce 
law  in  working  order  since  that  date. 

Shortly,  the  propositions  that  Cranmer  proposed 
were  these,  and  they  will  be  found,  I  think,  to  run 
parallel  with  the  views  of  the  common-sense  citizen 
of  to-day.  He  laid  down  the  command  that  no 
husband  or  wife  may  abandon  the  other  of  his  or 
her  own  free  will  and,  in  order  that  this  might  be 
a  practical  ideal,  he  set  down  the  causes  for.  which 
the  Courts  were  to  grant  relief.  Divorce  was 
allowed  for  adultery,  unless  both  parties  were 
guilty  ;  desertion  ;  the  unduly  protracted  absence 
of  the  husband  ;  or  the  deadly  hostility  of  the 
parties.  Prolonged  ill-treatment  of  the  wife  gave 
her  a  right  to  divorce,  but  even  here,  as  long  as  there 
was  any  hope  of  improvement,  the  duty  of  the 
ecclesiastical  judge  was  to  reason  with  the  husband 
and  make  him  give  bail  for  good  behaviour.  Only 
in  the  last  resort  must  "  she  on  her  part  be  helped 
by  the  remedy  of  divorce." 

Great  stress  is  laid  throughout  the  treatise  on  the 
126 


DIVORCE 

desirability  of  reconciliation.  "  Since  in  matrimony 
there  is  the  closest  possible  union  and  the  highest 
degree  of  love  that  can  be  imagined,  we  earnestly 
desire  that  the  innocent  party  should  forgive  the 
guilty  and  take  him  back  again  should  there  seem 
to  be  any  reasonable  hope  of  a  better  way  of  life." 
Practical  effect  was  to  be  given  to  this  principle 
by  the  Court  before  proceeding  to  divorce. 

Cranmer  was  entirely  at  one  with  the  more 
advanced  thought  of  to-day  in  his  detestation  of 
"  separation  orders."  Separation  without  divorce 
was,  he  realised,  an  overture  to  immorality. 

"  It  was  formerly  customary,"  he  writes,  "  in  the 
case  of  certain  crimes  to  deprive  married  people  of 
the  right  of  association  at  bed  and  board  though  in 
all  other  respects  their  marriage  tie  remained  intact  ; 
and  since  this  practice  is  contrary  to  Holy  Scripture, 
involves  the  greatest  confusion,  and  has  introduced 
an  accumulation  of  evils  into  matrimony,  it  is  our 
will  that  the  whole  thing  be  by  our  authority 
abolished."  What  he  would  have  said  about  our 
wholesale  police  court  method  of  separating  married 
people  without  giving  them  any  rights  to  form  new 
ties  one  does  not  like  to  imagine.  One  cannot  turn 
from  the  short  and  pithy  "  Reformatio  Legum 
Ecclesiasticarum  "  of  the  sixteenth  century  to  the 
colossal  unwieldy  Blue  Books  of  the  twentieth 
century  with  any  sense  of  satisfaction.  Perhaps  the 
most  interesting  thing  to  be  got  out  of  the  latter  is  a 
study  in  contrasts  between  the  body,  flavour,  and 
bouquet  of  archbishops  of  different  vintages. 

Thomas  Cranmer's  services  to  the  State  being  no 
127 


THE   LAW  AND   THE  POOR 

longer  available  after  the  Balliol  fire,  the  choice  of 
his  Majesty  Edward  VII.,  when  he  issued  his  Royal 
Warrant  in  1909  for  the  Divorce  Commission,  fell 
on  "  The  Most  Reverend  Father  in  God  Our  right 
trusty  and  entirely  beloved  Counsellor  Cosmo 
Gordon,  Archbishop  of  York,  Primate  of  England 
and  Metropolitan." 

One  would  have  hoped  that  after  four  hundred 
years  further  consideration  of  Cranmer's  views  on 
divorce — the  latter-day  representative  of  Cranmer's 
Church  would  have  been  able  to  give  King 
Edward  VII.  at  least  as  good  counsel  as  his  pre- 
decessor gave  to  Edward  VI.  No  doubt  the 
Minority  Report  that  he  ultimately  wrote  fairly 
represents  the  narrower  views  of  modern  ecclesias- 
tics, but  it  is  a  sad  thing  to  see  the  leader  of  a  great 
Church  absolutely  out  of  touch  with  the  practical 
reforms  that  those  who  know  the  lives  of  the  poor 
admit  to  be  necessary.  I  should  regret  if,  in  a 
moment  of  spiritual  insight,  it  should  be  made  clear 
to  our  good  archbishop  that  in  signing  the  Minority 
Report  his  right  hand  had  been  guilty  of  offence, 
or  that  he  should  think  fit  to  discipline  himself  after 
Cranmer's  example  ;  but  if  he  had  thrust  his 
Minority  Report  into  the  fire,  Church  and  State 
might  have  sung  a  joyful  psalm  of  conflagration  and 
congratulation.  Alas  !  Edward  VI.  passed  away 
without  reform,  and  our  brave  King  Edward  VII. 
changed  his  world  whilst  the  Commissioners  were  still 
commissioning,  and  maybe  it  will  be  Edward  VIII. 's 
turn  some  four  hundred  years  hence  to  sign  the  new 
divorce  law.     Let  nothing  be  done  in  a  hurry. 

128 


DIVORCE 

From  Cranmer's  day  until  1857  no  divorce  law 
was  passed.  In  the  meantime,  if  you  were  a  peer 
with  a  naughty  wife,  you  got  an  Act  of  Parliament 
passed  to  divorce  her.  It  was  an  expensive  proceed- 
ing and,  incidentally,  of  doubtful  legality.  But  the 
eugenics  of  nobility  and  the  purity  of  breed  in  the 
peerage  made  some  such  machinery  necessary,  and 
so  you  had  "  An  Act  for  Lord  Roos  to  marry  again," 
and  others  similaily  entitled.  Only  the  very  rich  at 
the  rate  of  two  or  three  a  year  could  avail  themselves 
of  this  procedure,  and,  of  course,  the  very  poor  had 
not  a  look  in  at  all. 

It  was  a  judge  who  awakened  the  world  to  the 
iniquity  of  it  all,  and  he  did  it  by  a  jest.  There  are 
some  funny  things  said  in  the  High  Court  to-day, 
but  they  do  not  seem  to  be  designed  to  push  the 
world  along  as  this  witty  speech  did.  It  was 
Mr.  Justice  Maule — a  sly  dog,  the  hero  of  many  a 
good  circuit  story — that  one  about  the  threatening 
letters,  for  instance — it  was  Maule  J.  in  a  bigamy 
case,  Regina  v.  Thomas  Hall,  tried  at  Warwick  in 
1845,  who  woke  up  the  country  to  the  fact  that  there 
was  a  divorce  problem,  and  that  it  wanted  solving. 

Hall  was  a  labouring  man  convicted  of  bigamy 
and  called  up  for  sentence.  Maule,  in  passing 
sentence,  said  that  it  did  appear  that  he  had  been 
hardly  used. 

"  I  have  indeed,  my  Lord,"  called  out  poor  Hall, 
"  it  is  very  hard." 

"  Hold  your  tongue,  Hall,"  quoth  the  judge,  "  you 
must  not  interrupt  me.  What  I  say  is  the  law  of  the 
land  which  you  in  common  with  everyone  else  are 

l.p.  129  K 


THE  LAW   AND  THE  POOR 

bound  to  obey.  No  doubt  it  is  very  hard  for  you  to 
have  been  so  used  and  not  to  be  able  to  have  another 
wife  to  live  with  you  when  Maria  had  gone  away  to 
live  with  another  man,  having  first  robbed  you  ;  but 
such  is  the  law.  The  law  in  fact  is  the  same  to  you 
as  it  is  to  the  rich  man  ;  it  is  the  same  to  the  low  and 
poor  as  it  is  to  the  mighty  and  rich  and  through  it 
you  alone  can  hope  to  obtain  effectual  and  sufficient 
relief,  and  what  the  rich  man  would  have  done  you 
should  have  done  also,  you  should  have  followed 
the  same  course." 

"  But  I  had  no  money,  my  Lord,"  exclaimed 
Hall. 

"  Hold  your  tongue,"  rejoined  the  judge,  "  you 
should  not  interrupt  me,  especially  when  I  am  only 
speaking  to  inform  you  as  to  what  you  should  have 
done  and  for  your  good.  Yes,  Hall,  you  should  have 
brought  an  action  and  obtained  damages,  which 
probably  the  other  side  would  not  have  been  able  to 
pay,  in  which  case  you  would  have  had  to  pay  your 
own  costs  perhaps  a  hundred  or  a  hundred  and 
fifty  pounds." 

"Oh,  Lord  !  "  ejaculated  the  prisoner. 

"  Don't  interrupt  me,  Hall,"  said  Maule,  "  but 
attend.  But  even  then  you  must  not  have  married 
again.  No,  you  should  have  gone  to  the  Ecclesi- 
astical Court  and  then  to  the  House  of  Lords,  where, 
having  proved  that  all  these  preliminary  matters 
had  been  complied  with,  you  would  then  have  been 
able  to  marry  again  !  It  is  very  true,  Hall,  you 
might  say,  '  Where  was  all  the  money  to  come  from 
to  pay  for  all  this  ?  '     And  certainly  that  was  a 

130 


DIVORCE 

serious  question  as  the  expenses  might  amount  to 
five  or  six  hundred  pounds  while  you  had  not  as 
many  pence." 

"  As  I  hope  to  be  saved,  I  have  not  a  penny — I 
am  only  a  poor  man." 

"  Well,  don't  interrupt  me  ;  that  may  be  so,  but 
that  will  not  exempt  you  from  paying  the  penalty 
for  the  felony  you  have  undoubtedly  committed. 
I  should  have  been  disposed  to  have  treated  the 
matter  more  lightly  if  you  had  told  Maria  the  real 
state  of  the  case  and  said,  '  I'll  marry  you  if  you 
choose  to  take  your  chance  and  risk  it,'  but  this  you 
have  not  done." 

And  so  the  judge  gave  Hall  three  months  or,  as 
some  say,  four.  But  that  was  because  he  had  not 
told  Maria  all  about  it.  It  was  for  not  playing 
cricket,  not  for  breaking  the  law.  And  where  the 
parties  commit  bigamy  out  of  sheer  respectability 
and  a  desire  to  placate  Mrs.  Grundy  and  have  some 
marriage  lines  in  a  teapot  on  the  mantelpiece  to  show 
the  lady  who  lives  next  door,  the  judges,  providing 
there  is  no  deception,  wisely  treat  the  offence  as 
something  far  less  deserving  of  imprisonment  than 
non-payment  of  rates.  Why  the  police  prosecute  in 
these  cases  the  chief  constable  only  knows. 

And  the  scorn  and  irony  that  Maule  poured  on  the 
law  of  divorce  roused  the  public  conscience,  and 
there  was  a  Royal  Commission  in  1850  and  a  Divorce 
Act  in  1857,  and  the  result  was  the  Divorce  Court  as 
we  know  it,  an  excellent  tribunal  for  the  matrimonial 
troubles  of  well-to-do  people,  but  of  no  use  to  poor 
Hall  and  Maria.     For  Maule's  words  slightly  para- 

131  K  z 


THE  LAW  AND  THE  POOR 

phrased  might  be  as  truly  spoken  to  the  bigamist  of 
to-day  as  they  were  to  poor  Hall. 

And  four  years  ago  we  had  another  Royal  Com- 
mission, and  hundreds  of  witnesses  were  examined, 
and  papers  and  reports  handed  in,  and  many  days 
spent  in  collating  and  considering  the  same,  and 
much  stationery  consumed.  It  was  a  shabby  thing 
to  the  poor  to  institute  this  long-winded  inquiry. 
There  was  nothing  to  inquire  into.  The  mountain 
has  finished  groaning,  and  the  expensive  and  ridicu- 
lous mouse  has  made  his  appearance — and  all  it 
comes  to  is  that  what  good  old  Thomas  Cranmer 
said  ought  to  be  done  in  1550  the  majority  think 
might  be  experimented  on  in  19 14  ;  only — the  arch- 
bishop of  to-day  is  no  longer  on  the  side  of  reform. 

That,  I  suppose,  shows  us  very  fairly  the  pace  at 
which  the  world  moves  forward  and  the  Church 
moves  backward.  In  a  great  and  necessary  social 
reform,  such  as  this,  the  Church  occupies  the  position 
of  the  old-fashioned  horse  lorry  strolling  down  the 
middle  of  the  road  amiably  blocking  the  modern 
traffic  of  the  city.  It  is  all  very  pleasant  and  reas- 
suring to  those  nervous  folk  who  fear  we  are  rushing 
like  Gadarene  pigs  into  a  sea  of  legalised  vice  and 
immorality,  but  to  visionaries  and  dreamers  like 
myself  who  would  like,  as  the  children  say,  "  to  see 
the  wheels  go  round  "  in  their  lifetime,  it  has  its 
mournful  side. 

There  are  two  ways  in  which  those  who  are  satis- 
fied that  the  world  is  the  best  of  all  possible  worlds 
meet  proposals  for  reform.  If  they  are  backed  up 
by  popular  clamour  and  agitation  they  say  with 

132 


DIVORCE 

some  show  of  reason  that  it  would  never  do  to  give 
way  to  threats  of  violence.  If,  on  the  other  hand, 
the  campaign  for  reform  is  conducted  by  mannerly 
argument  it  is  commonly  said  that  there  is  no  demand 
for  a  change.  Comfortable  clerical  persons  are  never 
tired  of  telling  you  that  there  is  really  no  demand  from 
the  poorer  classes  for  any  reform  of  the  divorce  laws. 

True,  people  do  not  go  out  in  the  streets  and  break 
the  windows  of  Cabinet  Ministers  or  make  them- 
selves politically  disagreeable  after  the  fashion  of  the 
middle  classes  who  have  grievances  real  or  imaginary. 
But  anyone  whose  advice  is  sought  by  the  poor  in 
their  troubles  knows  that  the  demand  for  divorce 
exists  if  it  were  of  any  use  uttering  it  aloud  to  our 
smug  and  respectable  rulers.  Of  course  the  demand 
or  no  demand  is  immaterial  to  anyone  who  has 
grasped  the  fact  that  it  is  a  principle  of  elementary 
justice  that  the  poor  should  have  the  same  audience 
and  remedies  in  all  our  Courts  as  the  rich. 

The  real  demand  for  divorce  is  to  be  found  in  the 
circumstances  of  the  lives  of  the  poor.  I  propose  to 
set  down  a  few  typical  cases  drawn  in  every  instance 
from  public  published  records. 

Jane  married  Fred  when  twenty-two  years  of  age. 
Soon  after  the  marriage  he  began  to  ill-treat  her  and 
would  not  work.  Jane's  parents  helped  them  in 
business.  Fred  continued  his  ill  ways  and  at  length 
gave  Jane  a  beating.  Jane  took  out  a  summons, 
but  would  not  face  the  Court,  and  forgave  Fred. 
After  five  years  of  unhappy  married  life  Jane  went 
back  to  her  parents  taking  her  two  children,  Fred 
agreeing  to  pay  her  three  shillings  a  week.     At  the 

133 


THE  LAW  AND  THE  POOR 

end  of  nine  months  he  ceased  to  send  any  money 
and  disappeared.  For  seven  years  Jane  lived  with 
her  parents  until  they  died.  After  their  death  she 
found  it  a  great  struggle  to  live  and  pay  the  rent. 
Charles  now  comes  on  the  scene,  he  takes  lodgings 
and  pays  the  rent.  Ultimately  Charles  and  Jane 
live  happily  together  and  there  are  two  children  of 
the  union.  Charles  provides  for  Fred's  children  as 
well  as  his  own.  Charles  and  Jane  would  like  to 
marry  for  their  own  sake  and  for  their  children's. 
In  so  far  as  there  is  any  sin  or  immorality  in  this 
story  the  promoters  of  it  and  the  sharers  in  it  are 
those  who  stand  in  the  path  of  divorce  reform. 

Here  is  another  typical  case.  George  marries 
Mary,  their  ages  are  eighteen  and  seventeen.  Soon 
after  marriage  Mary — who  comes  of  an  immoral 
family — starts  drinking  and  going  about  with  other 
men.  Ultimately  she  deserts  George  and  becomes 
pregnant  by  another  man  and  is  confined  in  hospital. 
The  guardians  proceed  against  George  for  the  ex- 
penses of  the  confinement,  but  he  is  able  to  prove 
to  their  satisfaction  that  he  is  not  the  father  of  the 
child.  Mary  then  disappears  to  further  infidelities 
and  George  goes  back  to  live  with  his  mother. 
Later  on  Anna  appears  on  the  scene  and  George  and 
Anna  have  now  a  comfortable  home  and  healthy 
infant.  :'  They  think  a  deal  of  it  and  wish  it  could 
be  legitimate." 

So,  no  doubt,  do  Charles  and  Jane  and  many  other 
poor  parents  in  like  case.  The  law  says  that  these 
people  are  entitled  to  have  a  divorce,  only  the  law 
erects  its  Court  in  a  corner  of  London  inaccessible 

J34 


DIVORCE 

to  these  poor  provincials,  and  makes  the  costs  and 
fees  and  services  of  its  judges  and  officials  and 
counsellors  so  expensive  that  there  is  no  possibility 
of  Charles  and  George,  and  Jane  and  Anna,  and 
their  little  infants  having  the  blessings  of  legal  and 
holy  matrimony  because  they  have  not  the  cash  to 
purchase  the  luxury  which  is  not  for  the  likes  of 
them  anyhow.  And  when  it  is  suggested  that 
divorce  might  be  cheapened  and  made  available  for 
these  poor  citizens  archbishops  shake  their  heads, 
and  legal  bigwigs,  with  their  eye  on  the  fees  and  the 
costs,  hold  up  their  hands  in  amazement.  Divorce 
is  a  reasonable  proposition  for  Marmadukc  and 
Ermyntrude,  of  "The  Towers,"  Loamshire,  but  for 
George  and  Anna  in  Back  Tank  Street,  Shuttle- 
borough — not  likely.  There  is  no  demand  for  it, 
says  the  Minority  Report,  and  its  worthy  authors 
point  out  with  cynical  contempt  for  the  working 
classes  that  they  have  got  a  system  of  separation 
orders  which  is  really  all  they  require. 

Now  if  there  is  one  thing  which  the  evidence 
before  the  Commission  puts  beyond  doubt  it  is  that 
the  law  in  relation  to  separation  orders  induces, 
invites,  and  causes  immorality  in  the  poor.  Cranmer, 
you  remember,  knew  all  about  that,  and  looked  on 
separation  without  the  right  to  remarry  as  an 
unclean  thing.  But  since  the  sorrows  of  the  poor 
in  their  marriage  shipwrecks  were  so  manifest,  and 
the  Divorce  Court  was  closed  to  them,  systems  of 
magisterial  separation  orders,  cheap  permanent 
divorces,  without  the  right  to  marry  again,  have 
become  the  order  of  the  day. 

135 


THE  LAW  AND   THE  POOR 

There  are  some  six  thousand  of  these  decrees 
made  annually.  The  evidence  is  overwhelming  as 
to  the  evils  that  spring  from  these  orders.  As 
Mrs.  Tennant  reports,  "  I  believe  that  separation 
orders,  the  general  alternative  offered  to  divorce, 
work  badly  in  working-class  houses,  and  on  the 
whole  make  for  an  increase  rather  than  a  diminu- 
tion of  immorality.  We  have  to  consider  housing 
conditions  and  economic  circumstances  which  often 
do  not  make  for  clean  or  wholesome  ways  of  life, 
and  where  the  relief  offered  by  separation  is  not 
only  inadequate  but  positively  mischievous." 

Put  in  plainer  terms  by  the  witnesses,  a  labouring 
man,  if  he  has  to  find  a  home  for  his  children,  has 
to  find  a  woman  to  keep  house  for  him  ;  a  woman 
of  the  same  class  has  to  pay  a  rent,  which  necessi- 
tates the  taking  in  of  a  lodger.  Human  nature 
being  what  it  is,  it  seemed  superfluous  to  appoint  a 
Royal  Commission  of  trusty  and  well-beloved  ones 
to  tell  us  what  would  happen.  This  is  a  system  that 
the  Archbishop  of  York  thinks  "  probably  fulfils  its 
purpose  fairly  well." 

Of  course,  it  all  depends  what  its  purpose  may  be. 
If  it  is  its  purpose  to  stand  in  the  way  of  cheap 
divorce  and  the  rights  of  the  poor  to  have  the  same 
chance  of  rescue  from  a  shipwrecked  marriage  that 
the  rich  possess,  all  is  indeed  well.  But  if  the  object 
of  the  law  is  to  bring  to  those  who  are  weary  and  in 
misery  some  hope  of  a  new  life  and  a  new  home 
where  children  can  be  born  without  shame  and  the 
parties  can  live  in  accordance  with  the  wishes  of 
themselves   and   their   neighbours,   then    with   all 

136 


DIVORCE 

respect  to  the  Primate  of  England,  the  law  is  prob- 
ably fulfilling  its  purpose  very  damnably. 

It  is  only  fair,  of  course,  to  remember  that  the 
Archbishop  of  York  and  his  learned  colleagues  of 
the  Minority  Report  never  meet  Fred  and  Jane  and 
George  and  Anna  in  real  life,  and  can  know  no  more 
about  such  folk  at  first  hand,  and  have  as  little 
chance  of  understanding  their  point  of  view,  as  I 
have  of  studying  and  comprehending  the  socio- 
logical limitations  of  the  higher  priesthood. 

Detestable  as  I  hold  these  ecclesiastical  errors  to 
be  in  their  practical  bearing  on  the  lives  of  the  poor, 
I  am  hopeful  that  time  and  argument  will  overcome 
the  ecclesiastical  veto  on  reform.  I  am  sure  that 
even  a  bishop  would  be  converted  to  healthier  views 
of  life  if  he  could  have  a  little  home  chat  with  George 
and  Anna.  And  if  their  pleading  did  not  convince 
him,  I  have  a  belief  that  the  sight  of  their  babies 
might  touch  the  heart  which  even  in  a  bishop,  we 
may  suppose  beats  somewhere  beneath  the  chimere 
and  rochet  or  whatever  the  vestments  are  called  in 
which  his  lordship  disguises  his  human  nature  from 
the  lower  classes. 

Many  of  our  judges  and  other  learned  men  see 
very  clearly  the  enormous  importance  of  divorce 
reform  to  the  poor.  Mr.  Justice  Bargrave  Deane 
put  the  matter  very  straightly  to  the  Commission 
when  he  said,  "  The  question  of  divorce  is  more  a 
question  for  the  poor  than  the  rich.  The  rich  have 
their  homes  and  their  comforts  and  their  friends  who 
are  of  a  different  position  and  who  can  by  their  own 
advice  and  conduct  keep  people  straight."     In  so 

137 


THE  LAW  AND   THE  POOR 

far  as  this  implies  that  the  standard  of  morality  or 
etiquette  of  decent  matrimonial  conduct  is  stricter 
among  the  rich  than  the  poor,  I  doubt  its  truth. 
The  working  classes  have  no  leisure  for  flirtations 
and  philandering.  The  behaviour  of  a  fast  set 
in  a  wealthy  country  house — which  is  generally 
more  vulgar  than  really  naughty — would  probably 
scandalise  the  dwellers  in  a  back  street.  But  what 
the  learned  judge  wished  to  emphasise  was  that  the 
consequences  of  ill-conduct  in  a  husband  or  wife  are 
far  more  serious  in  the  everyday  life  of  the  cottage 
than  in  that  of  the  mansion.  Here  he  is  un- 
doubtedly right. 

What,  for  instance,  can  be  more  terrible  than 
the  effect  of  persistent  drunkenness  on  the  married 
life  of  the  poor.  Alfred  and  Anna  have  two  chil- 
dren. The  man  earns  thirty- two  shillings  and  six- 
pence a  week  when  in  full  work  and  is  a  thoroughly 
decent  and  respectable  man.  His  wife  is  an  inebriate. 
She  pawns  everything  for  drink  and  neglects  her 
children.  Her  husband  obtains  a  separation  order, 
but  after  three  years  Anna  promised  reform,  and 
Alfred,  like  the  good  fellow  he  was,  took  her  back. 
Unfortunately  in  two  months  she  was  as  bad  as 
ever,  and  furniture,  bedding,  clothes,  all  the  house- 
hold gods  disappear  to  the  pawnshop.  The  chil- 
dren are  reported  upon  by  the  school  authorities. 
The  parents  are  prosecuted  for  neglect,  and  on  Anna 
agreeing  to  go  to  an  inebriates'  home  for  twelve 
months  the  bench  postpone  sentence.  When  she 
comes  out  she  is  a  wreck,  suffering  from  alcoholic 
neuritis  which  is  leading  to  paralysis.     During  her 

138 


DIVORCE 

absence  Alfred  has  had  to  pay  seven  and  six  a  week 
for  her  maintenance.  He  now  allows  her  five  shil- 
lings a  week  and  she  lives  with  her  sister.  He  is 
on  short  time  earning  twenty-six  shillings  a  week. 
The  children  are  without  mother,  the  home  is 
without  a  woman's  care  and  influence  and  his 
income  is  rendered  insufficient  to  provide  the 
necessaries  of  life. 

Here  is  another  picture — John  married  Catharine 
in  1896.  There  was  one  child.  When  the  infant 
was  nine  months  old  Catharine  was  forced  to  leave 
her  husband  on  account  of  his  drunken  habits. 
The  child  went  to  its  grandmother  and  Catharine 
went  to  service  for  seven  years.  After  that  time 
she  met  Charles,  a  widower,  with  one  child.  Being 
a  brave  and  sensible  woman  she  went  to  live  with 
him  as  his  wife.  They  have  two  children  of  their 
own  now,  one  is  three  years  old  and  the  other  six 
months.  They  have  a  good  home  and  are  very 
happy,  and  would  like  to  be  married  if  the  law 
allowed  it. 

Now  all  that  religion  has  to  tell  us  about  these 
cases  is  that  marriages  are  made  in  heaven  and  that 
heaven  having  once  made  these  two  utter  messes 
of  human  affairs,  it  is  impious  for  human  hands 
and  minds  to  try  and  mitigate  the  evil  for  which 
heaven  is  responsible.  I  wish  those  for  whom 
these  old-world  blasphemies  have  merely  a  folk- 
lore interest  would  leave  this  so-called  religion 
mumbling  in  its  outer  darkness  and  apply  their 
practical  minds  to  so  reforming  the  law  that  the 
lives  of  Alfred  and  Anna  and  Catharine  and  Charles 

139 


THE  LAW  AND  THE  POOR 

and  their  innocent  babies,  and  hundreds  of  other 
good  men  and  women  and  innocent  children, 
might  no  longer  have  to  live  in  this  civilised  country 
under  any  legal  disability  or  under  any  social 
shadow  of  ignominy  or  shame.  In  practice  these 
folk  very  often  do  marry  again  without  the  blessing 
of  Church  or  State,  as  in  the  last-cited  case,  and  live 
useful  and  virtuous  lives,  bringing  up  happy  chil- 
dren in  good  homes.  The  law  should  assist  such 
citizens  in  the  interest  of  the  State,  for  the  com- 
munity want  good  homes  and  healthy  children 
leading  happy  lives. 

The  recommendation  of  the  Majority  Commission 
in  this  matter  is  a  very  conservative  one.  It  is 
that  habitual  drunkenness  found  incurable  after 
three  years  from  a  first  order  of  separation  should 
be  a  ground  for  divorce.  This,  coupled  with  divorce 
for  cruelty  or  desertion  for  three  years  and  upwards, 
would  certainly  cover  some  of  the  sadder  cases  that 
were  brought  to  the  notice  of  the  Commissioners. 

The  right  of  the  State  to  refuse  divorce  in  the  case 
of  the  insanity  of  a  party  to  a  marriage  seems  hardly 
arguable.  Here  is  one  of  the  many  sad  stories. 
Norah  married  a  soldier  twenty  years  ago.  Four- 
teen years  ago  he  was  taken  to  an  asylum,  where 
he  still  is,  and  Norah  applied  for  relief.  She  was 
offered  scrubbing  work  at  the  workhouse  from 
7  a.m.  to  6  p.m.  at  nine  shillings  a  week  and  some 
bread,  or  two-and-six  a  week  and  six  pounds  of 
bread,  with  liberty  to  take  in  two  lodgers.  Norah, 
to  be  with  her  children,  chose  the  latter.  John 
was   one  of   the   lodgers.      He  found  his  way   to 

140 


DIVORCE 

Norah's  heart  by  buying  presents  of  boots  and  cloth- 
ing for  the  children.  And  so  Norah  and  John 
became  man  and  wife,  save  and  in  so  far  as  the 
law  refused  them  that  status.  As  Norah  told  a 
lady  visitor,  "  I  suppose  you  think  it  was  wrong  for 
me  to  drift  into  our  present  way  of  living,  but  it 
was  such  a  struggle  and  he  was  so  good  to  us.  I 
have  never  been  killed  with  wages,  but  we  are  as 
comfortable  as  we  can  be.  I  often  wish  we  were 
free  to  marry  because  we  do  not  like  our  children 
being  illegitimate,  and  people  look  down  on  a  woman 
so,  if  she  lives  as  I  am  doing." 

In  this  matter  it  is  cheering  to  know  that  the 
archbishop    and    his    learned    adherents    in    their 
Minority  Report  are  prepared  to  make  some  con- 
cession.    I  state  this  with  pleasure,  remembering 
the  wise  words   of   that  good  old  Welsh  parson, 
the  Rev.  John  Hopkins,  of  Rhoscolyn,  who  said, 
"  Indeed,  Judge  Parry,  remember  this,  one  must 
be  charitable  even  to  dissenters."     A  fortiori  one 
should  be  just  even  to  archbishops,  and  it  is  hope- 
ful that  in  the  matter  of  insanity  where  one  of  the 
parties  is  either  of  unsound  mind  at  the  time  of 
the   marriage   or   in   a   state   of   incipient    mental 
unsoundness  which  becomes  definite  after  six  months 
of  marriage  and  the  suit  is  commenced  within  a 
year    of    marriage    the    Minority    Report    timidly 
proposes  that  such  a  marriage  might  be  annulled. 
What  the  difference  in  principle  may  be  between 
the  cases  of  a  mad  husband  who  has  been  married 
for  six  months  and  a  madder  husband  who  has  been 
married  for  six  years  the  learned  ones  do  not  inform 

141 


THE  LAW  AND  THE   POOR 

us,  but  we  may  regard  it  as  a  sign  of  grace  that 
there  are  some  matrimonial  miseries  that  seem  to 
these  hard-hearted  pundits  worthy  of  sympathy 
and  relief. 

No  protest  seems  to  be  made  by  the  Church 
against  the  go-as-you-please  divorce  methods  of 
to-day  among  the  upper  classes,  but  if  divorce 
by  consent  does  not  exist  among  the  rich  it  shows 
great  rectitude  and  self-denial  on  their  part.  One 
often  reads  of  a  case  like  the  following  one.  Mrs. 
A.  is  neglected  by  her  husband,  who  leaves  her. 
She  asks  him  to  return  and  he  refuses.  She  files 
a  petition  for  restitution  of  conjugal  rights.  The 
Court  makes  a  fourteen  days'  order  on  the  un- 
defended petition.  I  wonder  if  such  an  order  has 
ever  been  obeyed  or  was  ever  intended  to  be  obeyed. 
On  receiving  the  order  Mr.  A.  writes  that  he  is  not 
coming  back,  but  that  he  will  be  found  staying  at  a 
certain  hotel  with  another  lady  under  the  style  of 
Mr.  and  Mrs.  A.  Inquiries  are  made,  and  this 
proving  true  a  divorce  petition  is  filed.  This  again 
is  undefended  and  the  decree  nisi  goes  as  of  course. 

It  is  conceivable  that  such  a  procedure  might  be 
used  by  two  intelligent  persons  who  did  not  respect 
the  laws  of  their  country  as  a  method  of  divorcing 
each  other  by  consent,  but  I  have  no  doubt  that  the 
well-to-do  who  constantly  go  through  these  forms 
are  far  too  scrupulous  in  their  observance  of  the 
letter  and  spirit  of  our  divorce  law  to  be  guilty  of 
anything  that  could  be  construed  into  collusion. 

I  do  not  think  that  in  this  country,  except  among 
wild  and  fanatical  folk  and  some  of  the  fast  set 

142 


DIVORCE 

with  whom  we  need  not  concern  ourselves,  there 
is  any  demand  for  divorce  by  mutual  consent. 
But,  even  if  this  were  enacted,  it  does  not  follow, 
as  Montaigne  has  told  us,  that  it  would  be  used. 
The  idea  that  a  more  reasonable  system  of  divorce 
will  lead  to  a  wholesale  system  of  divorces  is  an 
absurd  folly,  a  bogey  used  by  ignorant  but  honest 
clericals  to  frighten  good  people  who  rather  enjoy 
being  scared  to  death.  The  fat  boys  of  sociology 
love  to  make  their  victims' flesh  creep,  and  when  they 
speak  of  divorce  reform  constantly  suggest  that 
human  nature  tends  to  immorality  in  matrimonial 
affairs.  As  a  matter  of  fact  human  beings  naturally 
prefer  marriage  and  married  life  where  it  is  at  all 
a  successful  institution  to  divorce  and  divorced 
life.  This  is  wonderfully  illustrated  in  Belgium 
where,  as  M.  Henri  Mesnil,  the  French  avocat, 
points  out,  divorce  law  "  as  provided  for  by  the 
Code  Napoleon  has  remained  in  force  down  to  the 
present  day  :  in  spite  of  the  long  predominance 
of  the  Catholic  party  dissolution  of  marriage  by 
mutual  consent  is  still  possible  in  that  country. 
I  might  say  that  although  possible  it  is  a  very  rare 
thing.  I  think  only  one  case  of  divorce  by  mutual 
consent  will  be  found  amongst  four  hundred  cases 
in  Belgium." 

Here  we  have  the  results  of  a  hundred  years' 
experience  of  a  European  country  not  unlike  our 
own.  It  bears  out  exactly  what  one  would  expect, 
and  it  is  only  by  ignoring  such  evidence  and  referring 
to  the  laxity  of  State  procedure  in  America,  without 
reminding  the  reader  that  there  is  no  evidence  of  any 

143 


THE   LAW  AND  THE  POOR 

greater  laxity  in  the  state  of  morality  there  than 
elsewhere,  that  the  Archbishop  of  York  and  his 
friends  can  claim  that  the  "  preponderating  voice  of 
history  and  experience  " — a  charming  phrase — is  in 
favour  of  their  Minority  Report. 

The  archbishop  treats  history  as  Moses  treated  the 
rock.  He  strikes  it  with  his  archiepiscopal  staff  and 
there  flows  forth  a  gush  of  watery  precedents  to 
rejoice  the  hearts  of  the  faithful.  A  poor  pagan  like 
myself  can  only  approach  the  rock  with  a  humble 
geological  hammer  and,  knocking  a  few  chips  off  it, 
report  that  it  does  not  come  of  a  water-bearing  family. 
Outside  miraculous  draughts  of  history  there  is 
nothing  to  be  found  in  the  past  experience  of  social 
life  that  tells  against  a  reform  of  our  present  divorce 
laws. 

But  no  reform  in  the  law  will  be  of  the  least  use  to 
the  poor  unless  jurisdiction  in  divorce  is  given  to  the 
County  Court.  The  opposition  to  this  is  twofold. 
It  comes  from  those  who  object  to  any  reform  at  all 
and  see  that  by  keeping  divorce  costly  you 
naturally  limit  its  use,  and,  again,  it  comes  with  even 
greater  force  from  those  who  are  making  their  money 
out  of  the  present  system.  Very  naturally  the 
Divorce  Court  Bar,  having  an  excellent  paying 
business  all  to  themselves,  do  not  want  to  share  it 
round  with  other  people.  Towards  their  trade 
union  attitude  of  mind  I  have  every  sympathy. 
But  when  it  is  more  than  hinted  that  it  would  really 
be  beyond  the  capacity  of  a  County  Court  judge  to 
try  those  "  very  difficult  considerations  of  cruelty, 
condonation  and  connivance,"  I  prefer  the  allitera- 

144 


DIVORCE 

tion  of  the  phrase  to  the  sense  of  it.  There  is  really 
no  mystery  about  divorce  law.  The  issue  is  an 
absurdly  simple  one,  of  grave  importance  to  the  lives 
of  the  parties  certainly,  but  to  a  lawyer  with  a 
business  mind  far  easier  to  try  than  many  of  the 
issues  that  arise  every  day  in  bankruptcy,  Admiralty 
and  commercial  cases,  and  in  arbitrations  under  the 
Workmen's  Compensation  Act. 

The  daily  work  of  a  County  Court  judge  is  not  less 
difficult  than  that  of  his  High  Court  brother.  The 
complication  of  a  case  does  not  depend  upon  the 
amount  at  stake,  and  the  County  Court  judge  has,  if 
anything,  to  have  a  somewhat  wider  knowledge  of 
law  and  a  far  greater  knowledge  of  the  lives  of  the 
poor  than  any  other  judicial  person,  since  the  legal 
subjects  he  deals  in  are  more  varied  in  character  than 
those  met  with  in  other  Courts,  and  he  naturally  sees 
more  of  the  daily  life  of  the  people.  Certainly  the 
High  Court  judges  get  better  assistance  from  the 
Bar,  or  rather,  I  should  say,  more  assistance — or 
should  it  be  assistance  of  greater  length  ? — but  the 
County  Court  Bar  of  to-day  contains  the  pick  of  the 
younger  men,  and  is  really  the  nursery  of  the  common 
law  Bar  since  it  is  only  in  the  County  Courts  that  a 
catholic  experience  in  civil  advocacy  can  be  obtained. 
I  noted  with  some  interest  that  in  a  recent  batch  of 
silks  seven  or  eight  had  been  before  me,  some  of 
them  several  times  within  a  few  months  of  their 
taking  silk. 

When  there  is  a  divorce  case  of  any  importance — in 
the  same  way  as  if  it  were  a  libel  case  of  importance 
— great  advocates  with  no  special  knowledge  of  the 

l.p.  145  L 


THE  LAW  AND  THE  POOR 

mysteries  of  divorce  law  are  called  in  to  lead  the 
specialists.  What  is  wanted  is  advocacy,  not 
knowledge  of  divorce  procedure,  and  the  County 
Courts  have  excellent  advocates  to-day.  If  there  is 
one  special  branch  of  law  where  one  would  think 
expert  knowledge  is  essential  it  is  Admiralty,  yet 
important  Admiralty  cases  belong  to  County  Court 
districts  where  for  aught  anybody  knows  or  cares 
the  learned  judge  and  the  advocates  may  not 
know  the  difference  between  a  bowsprit  and  a 
rudder. 

But  the  real  reason  why  the  County  Court  should 
be  chosen  for  this  work  in  the  interests  of  the  poor 
is  to  my  mind  the  real  reason  why  the  County  Court 
is  popular  with  business  men  and  the  High  Court  is 
not.  In  a  properly  managed  County  Court  a  case  is 
set  down  for  a  certain  day  and,  except  on  rare  occa- 
sions, it  is  tried  on  that  day.  As  Mr.  Dendy,  the 
learned  registrar,  pointed  out  to  the  Commission, 
"  There's  no  doubt  it  is  of  very  great  advantage  to 
a  poor  man  to  know  the  day  on  which  his  case  is 
likely  to  be  tried."  It  is  indeed  essential.  The  man 
himself  and  his  witnesses  do  not  belong  to  a  class 
who  can  spend  leisured  hours  flitting  about  Gothic 
corridors  or  waiting  to  be  fetched  from  public-houses 
day  by  day  until  their  case  is  reached.  Certainty  of 
trial  and  reasonable  speed  in  reaching  and  disposing 
of  the  case  are  worth  much  more  to  business  people 
than  abstruse  technical  knowledge  or  long  experience 
of  the  habits  and  manners  of  those  who  commit 
adultery.  No  one  has  more  reverence  than  I  have 
for  the  views  of  Lord  Alverstone,  who  thinks  divorce 

146 


DIVORCE 

jurisdiction  should  not  be  given  to  County  Courts, 
yet  one  must  not  forget  that  not  only  is  the  opposite 
view  supported  by  a  large  number  of  men  and  women 
who  know  the  wants  of  the  poor  very  intimately,  but 
experts,  like  Sir  John  Macdonell  and  Sir  George 
Lewis,  both  recognise  that  if  you  are  going  to  give  a 
whole-hearted  measure  of  reform  with  the  intention 
of  really  putting  divorce  at  the  disposal  of  the  poor 
there  is  no  other  Court  to  which  these  cases  can 
honestly  be  sent. 

Not  only  must  this  be  done,  but  if  we  are  to  bring 
ourselves  abreast  of  what  already  exists  in  foreign 
countries  we  must  do  a  great  deal  towards  cheapen- 
ing the  procedure  even  of  the  County  Court  for  those 
who  are  poor. 

The  French  have  a  very  complete  system  of  divorce 
for  poor  people,  known  as  "  Assistance  Jndicaire." 
The  effect  is  that  the  persons  to  whom  assistance  is 
granted  do  not  have  to  pay  anything  whilst  they 
remain  poor.  The  State  advances  the  necessary 
money.  The  avocat  and  avoue — barrister  and  solici- 
tor— work  for  nothing.  In  case  the  assisted  person 
comes  into  better  circumstances  he  may  be  obliged 
to  repay  the  State.  If  the  poor  litigant  succeeds  in 
his  proceedings,  the  unsuccessful  party  pays  the 
costs.  In  1907  there  were  20,464  persons  who 
applied  for  assistance,  11,726  of  which  were  in  rela- 
tion to  matrimonial  proceedings,  and  relief  was 
granted  to  9,205  poor  people,  of  whom  5,136  were 
seeking  different  forms  of  matrimonial  relief. 

In  Germany  and  the  Netherlands  divorce  is  equally 
open  to  poor  people,  who  receive  State  aid,  and  in 

147  l  2 


THE   LAW  AND  THE  POOR 

Scotland  there  is  a  well-known  system  which  is 
known  as  the  Poors  Roll,  which  is  said  to  have 
existed  since  1424.  The  Scots  Parliament  Act, 
which  instituted  this  excellent  procedure,  com- 
menced as  follows  :  "If  there  be  any  poor  creature 
who  for  lack  of  skill  or  expenses  cannot  nor  may  not 
follow  his  cause  the  King  for  the  love  of  God  shall 
ordain  the  judge  before  whom  the  cause  shall  be 
determined  to  purvey  and  get  a  leal  and  wise  advo- 
cate to  follow  such  poor  creatures  causes :  and  if 
such  causes  be  obtained  [won]  the  wronger  shall 
indemnify  both  the  party  injured  and  the  advocate's 
costs  and  travail."  It  is  amazing  to  find  in  Scotland 
of  the  fifteenth  century  laws  for  the  poor  that  we  are 
only  dimly  thinking  about  in  our  vague  uncertain 
timid  way  at  the  present  day. 

What  actually  happens  to  the  poor  man  of  the 
present  day  is  set  out  in  the  following  case— a  very 
common  one  : — ■ 

Summoned  in  the  City  of  London  Court  for  the 
non-payment  of  forty-five  pounds,  his  wife's  costs 
in  a  divorce  suit  in  which  he  was  the  successful 
petitioner,  a  City  messenger  said  that  he  received 
one  hundred  and  seventeen  pounds  a  year,  and  while 
the  divorce  suit  was  pending  he  paid  his  wife  as 
alimony  two  pounds  ten  shillings  a  month.  He  had 
paid  sixty-five  pounds  for  his  wife's  costs,  and  still 
owed  forty-five  pounds.  He  had  obtained  an  order 
for  payment  of  his  own  costs  against  the  co-respon- 
dent, but  as  that  person  was  only  earning  a  few 
shillings  a  week  he  did  not  know  if  he  would  get 
anything. 

148 


DIVORCE 

Judge  Lumley  Smith,  K.C.  :  "  Does  a  successful 
husband  always  have  to  pay  his  wife's  costs  ?  " 

Mr.  Seyd  (for  the  defendant)  :   "  Yes." 

Judge  Lumley  Smith  :  "  That  is  rather  hard  on 
him." 

The  defendant  added  that  while  the  suit  was 
pending  he  had  to  borrow  fifty  pounds  from  his 
friends. 

Judge  Lumley  Smith  said  a  judgment  debt  must 
come  in  front  of  those  of  his  friends,  and  ordered 
payment  of  one  pound  a  month. 

This  man  could  not  have  proceeded  in  forma 
pauperis,  as  by  our  then  system  this  was  not  open  to 
anyone  with  more  than  thirty  shillings  a  week  with 
no  means  above  twenty-five  pounds  and  clothing. 
If  he  had  done  so  he  would  have  had  neither  counsel 
nor  solicitor  to  plead  his  cause  and  the  only  real 
benefit  he  would  have  obtained  would  be  that  he 
would  not  have  had  to  pay  Court  fees. 

The  self-respect  of  working  men  in  many  cases 
hinders  them  from  applying  for  assistance  rendered 
nominally  distasteful  by  the  pauper  taint.  They 
manage  these  things  better  in  France,  and  what  the 
poor  want  in  England,  in  fact  as  well  as  in  name,  is 
"  assistance."  The  new  rules  that  have  come  into 
force  this  year  go  a  little  way  to  provide  this,  but  it 
is  too  early  as  yet  to  say  how  far  they  will  meet  the 
wants  of  the  case. 

There  was  no  need  for  any  Royal  Commission  on 
Divorce  to  explain  to  any  reasonably  educated 
citizen  what  ought  to  be  done,  but  I  agree  that  the 
labours  of  man/  good  men  and  women  have  given 

149 


THE  LAW  AND  THE  POOR 

chapter  and  verse  for  the  want  and  the  remedy  in  a 
convenient  form.  Too  much  time  was  wasted  over 
the  moot  points  of  the  theologians,  for  most  citizens 
are  agreed  that  ecclesiastical  opinions  on  the  contract 
of  matrimony  as  it  affects  the  State  are  of  the  same 
value  and  no  more  as  ecclesiastical  opinions  would  be 
on  such  contracts  as  a  bill  of  sale  or  a  hire-purchase 
agreement,  which  may  equally  from  time  to  time 
affect  adversely  or  otherwise  the  moral  conduct  of 
human  beings. 

"  Marriage  is  nothing  but  a  civil  contract.  'Tis 
true  'tis  an  ordinance  of  God :  so  is  every  other  con- 
tract :  God  commands  me  to  keep  it  when  I  have 
made  it."  Worthy  John  Selden  did  not  mean  by 
that  that  it  was  to  be  kept  for  ever  and  in  all  circum- 
stances, but  that  it  was  to  be  kept  until  such  time 
as  the  law  released  the  parties  from  it  in  the  same  way 
as  every  other  civil  contract.  Nothing  is  more  true 
and  necessary  to  be  repeated  in  these  days  than  the 
citizens'  view  of  marriage  law.  Whatever  codes 
different  religious  men  and  women  wish  to  observe 
they  are  free  to  follow.  But  the  marriage  law  is 
a  question  of  citizenship  for  citizens  to  settle  for 
themselves.  It  is  therefore  satisfactory  to  read  in 
the  Majority  Report  that  English  laymen  seem 
generally  to  base  their  views,  not  upon  ecclesiastical 
tradition  or  sentiment,  but  upon  general  Christian 
principles  coupled  with  common-sense  and  ex- 
perience of  the  needs  of  human  life.  It  is  the 
conclusion  of  these  men  and  women — not  the 
anathemas  of  priests — that  want  parliamentary 
attention.     They  have    told    us    "  that    there    is 

150 


DIVORCE 

necessity  for  reform  in  this  country,  both  in  pro- 
cedure and  in  law,  if  the  serious  grievances  which  at 
present  exist  are  to  be  removed,  and  if  opportunities 
of  obtaining  justice  are  to  be  within  the  reach  of 
the  poorer  classes.  So  far  from  such  reforms  as  we 
recommend  tending  to  lower  the  standard  of  morality 
and  regard  for  the  sanctity  of  the  marriage  tie,  we 
consider  that  reform  is  necessary  in  the  interest  of 
morality,  as  well  as  in  the  interest  of  justice;  and 
in  the  general  interests  of  society  and  the  State." 

When    shall  we  find    time   to  ease  these  heavy 
burdens  of  the  poor  and  let  the  oppressed  go  free  ? 


T=il 


CHAPTER  VIII 

FLAT-TRAPS   AND   THEIR  VICTIMS 

Will  you  walk  into  my  parlour 

Said  the  Spider  to  the  Fly 
'Tis  the  prettiest  little  parlour 

You  ever  did  espy. 
The  way  into  my  parlour 

Is  up  a  winding  stair, 
And  I  have  many  curious  things 

To  show  you  when  you're  there. 
Will  you  ?    Won't  you  ? 
Will  you  ?    Won't  you  ? 

Walk  in  pretty  Fly. 

Nursery  Rhyme. 

If  we  could  remember  half  the  wise  saws  and  moral 
jingles  that  nurse  and  granny  taught  us  in  the 
nursery  and  not  forget  to  act  upon  them  in  after  life, 
what  sensible  citizens  we  should  be  !  Some  day  there 
will  be  cinematograph  lectures  to  the  young  people 
just  leaving  the  elementary  schools,  exhibiting  not 
only  the  real  spider,  but  his  many  human  prototypes, 
who  are  lying  in  wait  for  the  working-class  man  and 
woman  at  every  corner  of  their  career.  A  nature 
lesson  on  the  smaller  tally-man  would  be  far  more 
practical  in  a  city  school  than  a  botany  lecture  on 
the  lesser  celandine.  Nevertheless,  I  doubt  if  it  will 
do  much  good  when  it  comes  about.  Human  beings 
are  naturally  divided  into  spiders  and  flies,  and  of  the 

152 


FLAT-TRAPS   AND   THEIR  VICTIMS 

two  the  latter  really  have  the  best  of  it.  There  is  not 
much  fun  to  be  had  out  of  a  cramped  life  in  a  dingy 
web  counting  your  gains,  even  if  a  white  waist- 
coat and  a  gold  chain  conceal  your  evil  conscience. 
At  least  the  fly  buzzes  round  a  bit  and  thinks  he 
is  seeing  life  before  he  biffs  into  the  web.  And  no 
one  need  care  much  about  the  gay  young  sportsman 
bachelor  variety — except  perhaps  his  sweetheart, 
and  she  has  a  lucky  escape,  poor  thing !  But  the 
silly  old  married  fly  who  gets  caught  in  the  web  and 
leaves  a  young  wife  and  family  starving  at  home,  or, 
worse  still,  the  house-mother  fly  who  rushes  into  the 
web  just  to  look  at  the  spider's  latest  fashions  which 
she  knows  her  old  bluebottle  cannot  afford — these 
are  sad  cases. 

Thomas  Carlyle  was  mightily  pleased  with  him- 
self, I  doubt  not,  when  he  hit  upon  that  phrase 
describing  his  fellow  citizens  as  "  The  twenty-seven 
millions,  mostly  fools."  Those  last  two  words  are 
constantly  in  the  mouth  of  the  odd  fool  in  reference 
to  the  26,999,999  other  fellows.  Still  a  long  life 
in  the  County  Court  compels  me  to  the  conclusion 
that  the  fool  is  not  extinct ;  he  is,  indeed,  but  too 
prevalent.  Furthermore,  the  old  world  saying, 
"  that  a  fool  and  his  money  are  soon  parted,"  is, 
like  many  another  old  proverb,  a  true  saying. 

These  being  the  facts,  why  does  the  law  side  with 
the  inappropriate  knave  who  preys  upon  the  harm- 
less necessary  fool  ? 

Scientific  sociologists  will  no  doubt  tell  me  that 
if  the  law  were  to  protect  the  fool  the  effect  would  be 
to  increase  and  multiply  the  breed  of  fools,  whereby 

153 


THE  LAW  AND  THE  POOR 

the  human  race  would  become  a  bigger  fool  race  than 
already  it  is.  To  which  my  reply  would  be  that  the 
law  as  it  now  stands  makes  the  trade  of  knavery 
such  a  lucrative  one  that  the  business  of  it  is  fast 
becoming  overcrowded,  and  the  best  hope  of  the 
extinction  of  the  knave  seems  to  lie  in  the  fact 
that  he  will  soon  have  to  work  nearly  as  hard  for 
his  living  as  the  honest  man. 

It  is  all  very  well  to  smile  at  the  simplicity  of 
the  fool,  and  admire  the  cunning  of  the  knave, 
but  let  us  remember  that  the  poor  fool  has  in 
each  generation  to  discover  for  himself  that  this 
is  a  world  in  which  skimmed  milk  is  constantly 
masquerading  as  cream,  and  that  faith  in  the  honesty 
of  human  nature  in  business  affairs  is  in  the  poor 
man  the  first  step  on  the  road  to  ruin. 

I  do  not  want  the  law  to  mollycoddle  the  fool 
and  deprive  him  of  the  birthright  of  an  Englishman 
to  make  a  fool  of  himself  in  his  own  way,  but  I 
should  like  to  see  the  law  doing  more  to  stamp 
out  the  knave,  especially — O,  yes,  especially — 
when  he  is  a  respectable,  pious,  well-to-do  knave 
clothed  in  broad  cloth  and  a  well-boiled  shirt, 
tempting  the  working  man  to  part  with  his  savings 
in  the  name  of  thrift  and  the  preparation  for  the 
rainy  day. 

What  misery  has  been  caused  by  well-advertised 
and  wicked  schemes  of  investment  introduced  to 
the  working  man  by  lying  promises  garnished  with 
much  prayer  and  psalm  singing  ! 

If  a  chartered  accountant  could  make  out  a 
balance  sheet  of  the  losses  of  the  working  class 

154 


FLAT-TRAPS  AND  THEIR  VICTIMS 

from  frauds  connected  with  building  societies, 
insurance  schemes,  house-purchase  companies,  and 
the  like,  from  the  days  of  the  Liberator  onwards, 
what  a  terrible  indictment  it  would  be  of  the  way 
in  which  the  law  permits  the  rich  knave  to  rob  the 
poor  fool !  And  yet  how  few  of  the  promoters  of 
these  schemes  arrive  at  their  proper  destination — 
the  gaol. 

We  open  our  prison  doors  readily  enough  to  the 
poor  debtor,  but  the  rich  man  who  lives  on  the  stolen 
savings  of  the  poor  finds  it  as  difficult  to  enter  the 
gates  of  the  gaol  in  this  world  as  he  will  to  reach 
the  wicket  gate  in  the  hereafter. 

Many  societies  have  been  formed  under  the  Limited 
Liability  Companies  Acts  offering  working  men 
facilities  for  buying  their  own  houses  or  obtaining 
old  age  pensions  or  future  lodgings  in  some  glorious 
castle  of  Spain.  These  have  gathered  in  for  years 
the  savings  of  working  men,  and  when  the  directors 
were  called  upon  to  redeem  their  promises  it  was 
found  that  the  money  had  been  spent  in  directors' 
salaries  and  commissions,  and  there  was  no  pro- 
vision whatever  for  the  policy-holders. 

For  as  the  law  stands  you  may  make  nearly  any 
wild  promises  you  like,  for  that  is  not  the  contract. 
The  contract  is  the  long-worded,  obscure  policy 
which  is  sent  to  the  workman  later  on.  The  gaudy 
booklet  with  its  golden  promises  and  pretty  pictures 
of  villas  with  bow  windows  which  the  poor  man 
treasures  up  has  nothing  to  do  with  the  case. 

Sentimental  judges  may  try  to  find  a  way  out ; 
juries  may  give  verdicts  returning  the  poor  man 

155 


'.. 


THE  LAW  AND  THE  POOR 

his  money  ;  but  all  to  no  purpose.  The  law  stands 
firm  for  the  solemn  contract  under  the  seal  of  the 
company,  the  policy  which  the  poor  man  has  never 
read  and  could  not  understand  if  he  did ;  and  the 
sleek  directors  chuckle  at  the  angry  working  man, 
and  with  the  blessing  of  the  Court  of  Appeal  remind 
him  in  Shylock's  own  words  : 

Till  thou  canst  rail  the  seal  from  off  my  bond, 
Thou  but  offend'st  thy  lungs  to  speak  so  loud. 

And  certainly  as  the  law  stands  it  is  necessary 
to  have  a  Court  of  Appeal  stern  and  unbending  in 
judgment  to  uphold  the  sacred  nature  of  the  con- 
tract. The  doubt  in  my  somewhat  sentimental 
mind  is  whether  transactions  of  this  character 
between  knaves  and  fools  are  in  any  practical 
business  sense  really  contracts  at  all ;  and  if  they 
are  to  be  deemed  to  be  contracts  whether  power 
should  not  be  given  to  Courts  of  Justice  to  release 
the  victims  from  the  flat-traps  in  which  they  have 
been  snared,  and  give  them  at  least  some  of  their 
fur  back  again. 

This  has  been  attempted  with  the  moneylender, 
but  not  at  present  with  very  great  success.  For 
myself  I  have  always  thought  that  the  money- 
lender, if  he  be  a  real  moneylender  and  not  merely 
a  fee-snatcher,  is  by  no  means  the  worst  setter  of 
flat-traps.  I  have  an  uneasy  feeling  that  if  money- 
lenders were  Nonconformists  or  Churchmen,  instead 
of  being  Jews,  we  should  love  them  better. 

For  if  you  get  an  actual  sovereign  from  a  money- 
lender you  have  at  all  events  got  some  concrete 
thing  that  you  can  exchange  for  food  and  drink 

156 


FLAT-TRAPS  AND  THEIR  VICTIMS 

or  clothing,  and  the  token  has  an  ascertained  value  ; 
moreover,  if  you  know  a  little  arithmetic  you 
know  what  you  are  paying  for  it.  But  if  you  buy 
clothing  from  a  tally-man  or  a  watch  from  a  travel- 
ling jeweller,  or  a  walnut  suite  from  an  instalment 
furniture  dealer,  or  a  family  Bible  in  parts  from  an 
area  tout,  you  can  have  no  idea  whatever  of  the 
value  of  the  thing  purchased  or  the  percentage  of 
profit  on  the  deal. 

And,  though  I  should  like  to  see  all  this  class  of 
trading  done  away  with,  and  know  that  it  causes 
great  ruin  and  misery,  yet  to  my  mind  the  money- 
lender and  even  the  lower  class  of  tally-men  are 
angels  of  light  compared  with  the  directors  of  in- 
solvent collecting  societies,  who  take  the  savings 
of  the  thrifty  poor  on  promises  that  any  sensible 
person  must  know  to  be  incapable  of  performance. 

As  I  have  shown  elsewhere,  the  bulk  of  the  smaller 
flat-trap  poachers  could  be  quietly  exterminated 
by  the  abolition  of  imprisonment  for  debt.  That 
alone  is  the  artificial  manure  which  enables  these 
social  weeds  to  flourish.  Withhold  it  from  them 
and  they  would  wither  and  die,  and  the  world  would 
be  well  rid  of  them. 

If  the  man  in  the  street  could  listen,  as  I  have 
had  to  do  for  the  last  twenty  years,  to  tales  of  misery 
and  wretchedness  brought  about  by  our  absurd 
credit  system  he  would  understand  something  of 
my  impatience  at  its  continuance.  I  remember  a 
small  household  that  was  ruined  by  a  gramophone. 
A  poor  woman,  a  widow,  earned  twelve  shillings  a 
week,  and  a  son  was  doing  well  at  fifteen  shillings 

157 


THE  LAW  AND   THE   POOR 

a  week.  There  were  two  little  children.  As  things 
go  in  their  world  they  were  well-to-do.  The  Devil, 
in  the  form  of  a  tout,  came  down  the  street  one 
Saturday  afternoon,  with  a  beautiful  gramophone. 
It  was  only  a  shilling  a  week,  and  all  that  was  to  be 
done  was  for  mother  and  son  "  to  sign  just  there  at 
the  bottom  of  the  paper,  and,  of  course,  if  they  did 
not  want  to  keep  it  they  could  send  it  back." 

However,  later  on,  they  found  that  they  had 
signed  to  buy  it ;  the  boy  fell  out  of  work,  the  case 
was  put  in  Court,  and  judgment  was  entered  against 
both  mother  and  son  in  default  of  appearance  for 
two  or  three  pounds.  Then  the  son  enlisted  and 
went  to  India,  and  I  first  heard  of  the  case  when  they 
brought  the  widow  up  on  a  judgment  summons. 
I  asked  her  why  she  had  signed  the  guarantee,  and 
her  reply  was  :  "  Tom  was  such  a  good  lad  and  he 
was  in  work,  and  he  was  that  keen  to  have  it  I 
couldn't  deny  him."  Anyone  who  has  ever  been 
any  kind  of  a  father  or  mother  will  not  cast  a  stone 
at  her  for  her  folly. 

That  is  one  of  the  short  and  simple  tales  from  the 
annals  of  imprisonment  for  debt. 

What  match  are  confiding  folk  like  these  for 
the  lying  scallywags  who  tout  their  inferior  wares 
round  the  streets  ?  And  instead  of  our  law  remem- 
bering that  we  pray  daily  to  be  delivered  from  temp- 
tation, and  playing  the  part  of  a  father  of  the  father- 
less and  a  friend  of  the  widows,  it  keeps  alive  section  5 
of  the  Debtors  Act,  1869,  in  the  interests  of  about 
as  low  a  class  of  knaves  as  ever  disgraced  the  name 
of  English  trade. 

158 


FLAT-TRAPS   AND  THEIR  VICTIMS 

I  know  very  well  that  there  are  many  good  honest 
folk  who  approve  of  imprisonment  for  debt  and  have 
fears  about  its  abolition.  These  should  remember 
that  in  France  and  Germany  and  a  great  part  of 
America  there  is  no  such  thing,  and  yet  trade  does 
not  suffer  and  the  working  classes  do  not  starve. 
I  should  quite  agree  that  if  a  man  defrauds  a  trades- 
man by  lying  promises  or  cheating  he  should  be 
punished,  but  imprisonment  should  be  for  fraud, 
not,  as  it  is  now,  for  poverty.  As  I  have  already 
pointed  out,  in  America  no  honest  man  is  likely 
to  get  into  prison  merely  for  the  wickedness  of  owing 
money.  We  cannot  say  that  is  true  here.  In 
Germany  the  working  man  lives  on  a  cash  basis. 
Credit  is  not  largely  given,  as  there  is  no  power  of 
imprisonment  for  debt. 

England  is  the  last  civilised  country  whose  law 
encourages  the  poor  to  live  on  credit,  yet  nothing 
is  more  true  than  this,  that  once  start  living  on 
credit  and  you  cannot  get  out  of  it.  It  is  a  down- 
ward path  leading  to  the  Slough  of  Despond.  But 
until  the  law  is  amended  we  must  be  content  to 
look  on  and  see  the  poor  in  the  cages  of  prison 
whilst  those  that  set  the  traps  and  catch  them  wax 
fat  and  shine. 

And  as  soon  as  a  boy  or  a  girl  begins  to  earn 
wages  the  Evil  One,  in  the  shape  of  some  kind  of 
tally-man,  is  at  his  or  her  elbow  with  a  watch,  or  a 
ring,  or  a  family  Bible,  or  a  musical  instrument,  or  a 
shoddy  sewing  machine,  the  possession  of  which 
can  be  gloriously  enjoyed  on  payment  of  the  first 
instalment.     I  do  not  say  that  boys  and  girls  must 

159 


THE  LAW  AND  THE  POOR 

not  buy  their  experience  of  the  world  and  pay  for 
it,  but  the  law  need  not  assist  the  knave  in  making 
it  more  expensive  than  is  necessary.  I  have  known 
several  cases  of  young  servants  leaving  good  places 
and  running  off  in  terror  because  they  have  been 
served  with  a  blue  paper,  "  frightener  "  with  a 
lot  of  law  jargon  about  imprisonment  upon  it, 
threatening  them  with  dire  penalties  because  an 
instalment  was  due  on  a  gold  ring.  More  might 
certainly  be  done  to  prevent  back-door  trading, 
and  there  is  no  more  reason  why  area  touts  should 
be  allowed  to  infest  the  streets  than  the  lower  class 
of  bookmakers.  Well-to-do  people  have  very  little 
idea  of  the  number  of  firms  that  employ  travelling 
canvassers  and  touts  to  hawk  their  wares  from  door 
to  door  in  the  mean  streets. 

I  remember  once  a  fairly  well-to-do  working  man 
— he  was  the  doorkeeper  of  a  public  institution 
in  Manchester — had  an  action  brought  against  him 
by  a  street  tout  because  his  dog,  an  Airedale  terrier, 
had  bitten  the  prowling  fellow  as  he  was  coming 
in  at  the  back  door.  The  man  was  badly  mauled, 
and  the  dog  having  been  proved  to  have  bitten 
several  other  people  of  a  like  nature,  I  had, 
much  to  my  discontent,  to  give  judgment  for  the 
plaintiff. 

About  a  year  afterwards — having  forgotten  all 
about  the  matter — I  was  visiting  the  institution 
where  the  defendant  was  employed,  when,  as  the 
gentleman  I  wished  to  see  was  engaged,  the  door- 
keeper asked  me  to  step  into  his  lodge  and  sit  down 
and  wait. 

160 


FLAT-TRAPS  AND  THEIR   VICTIMS 

"  I've  often  wanted  to  see  you,  Mr.  Porry,"  he 
began,  "  about  that  there  dorg  case." 

"  What  case  was  that  ?  "  I  asked. 

"  That  case  where  you  fined  me  five  pounds  over 
an  Airedale  what  tried  to  gobble  up  a  tally-man." 

"  I  remember,"  I  said  doubtfully. 

"Well,"  he  continued,  "you  seemed  to  sympa- 
thise with  me  like,  but  you  found  against  me. 
You  see  I  had  bought  that  dorg  for  the  very  purpose 
of  keeping  those  fellows  off  the  premises  whilst 
I'm  away.  So  I  said  if  the  law  don't  let  'im  bite 
'em,  what's  the  use  of  the  dorg?  and  what  I  wanted 
to  arsk  you  was,  may  my  dorg  bite  'em  within 
reason  or  did  I  'ave  to  pay  five  pounds  'cause  'e 
mauled  'im  too  much  ? 

I  explained  the  law  in  relation  to  dogs  and  tally- 
men as  well  as  I  could,  and  my  friend  was  good 
enough  to  say  when  I  had  finished  : 

"  Well,  I  quite  see  you  'ad  to  make  me  pay  as 
the  law  stands,  but  it  don't  seem  to  me  just.  If 
you  can't  'ave  a  dorg,  how  can  you  keep  them 
fellows  out  of  the  house? 

That  was  more  than  I  could  answer.  We  parted 
friends — and  there  was,  I  think,  a  mutual  feeling 
between  us  that  the  law  of  dogs  in  relation  to 
tally-men  was  not  all  it  should  be. 

And  many  laws  that  are  made  for  the  best  purposes 
are  wrested  from  their  beneficent  uses  by  the  wicked 
ones  of  the  world  and  turned  to  the  basest  advan- 
tages. No  legislation  was  hailed  with  greater  delight 
by  social  reformers  than  the  Married  Women's 
Property  Act,  and  yet  one  must   admit  that   the 

l.p.  161  M 


THE  LAW  AND  THE  POOR 

fraudulent  use  of  its  provisions  is  a  commonplace. 
I  am  not  suggesting  that  it  is  mainly  against  the 
poor  that  it  is  misused,  though  I  have  known  of 
cases  under  the  Workmen's  Compensation  Act  where 
goods  were  alleged  to  be  "  in  the  wife's  name  "  after 
an  award  had  been  made  against  the  husband,  and 
many  a  poor  tradesman  and  small  worker  is  swindled 
by  this  allegation,  the  victim  not  having  the  money 
to  test  it  in  a  court  of  law,  and  the  result  being  in  any 
case  so  gloriously  uncertain.  I  am  sorry  to  put 
matrimony  among  the  flat-traps,  but  the  use  of  the 
married  status  among  the  dishonest  to  prevent  a 
successful  litigant  from  obtaining  the  results  of  a 
judgment  brings  it  within  this  category.  Even  the 
poorer  classes  themselves  are  beginning  to  make  use 
of  it  as  a  kind  of  homestead  law  to  protect  their  goods 
from  execution. 

Much  as  I  am  in  favour  of  seeing  the  poor  man's 
home  protected  to  a  larger  degree  than  it  is  at 
present  I  do  not  care  to  see  it  achieved  at  the 
expense  of  the  character  of  the  occupants.  Any 
law  that  is  a  constant  temptation  to  dishonesty  is 
an  evil,  and  there  is  no  doubt  that  when  the  day 
comes  for  legal  reform  on  a  large  scale,  the  various 
questions  relating  to  the  position  of  the  married 
woman  in  the  eye  of  the  law  will  have  to  be  con- 
sidered. In  many  cases,  of  course,  the  reforms  will 
be  towards  the  enlargement  of  women's  liberty,  but 
in  the  matter  of  holding  property  it  is  clear  that  where 
a  wife  or  a  husband  is  tacitly  allowing  credit  to  be 
obtained  on  his  or  her  appearance  of  property  that 
property  should  be  available  to  discharge  the  debt 

162 


FLAT-TRAPS   AND   THEIR  VICTIMS 

notwithstanding  that  it  is  claimed  as  the  special 
property  of  one  or  the  other. 

Menander,  the  Greek  poet,  in  one  of  his  comedies 
makes  someone  say,  "  To  marry  a  wife,  if  we  regard 
the  truth,  is  an  evil,  but  it  is  a  necessary  evil."  If 
this  was  true  in  300  B.C.  it  became  more  convincingly 
the  truth  in  1882  a.d.,  when  the  Married  Women's 
Property  Act  became  law,  and  the  "  peculiar  gift  of 
heaven  "  was  welcomed  by  the  unscrupulous  trader 
as  a  statutory  stay  of  execution.  Since  that  day  the 
Micawbers  of  this  world  have  put  all  their  available 
assets  "  in  the  wife's  name." 

The  legal  privileges  of  the  married  woman  are  not 
sufficiently  well  known.  Like  "  the  infant  "  she  is, 
indeed,  the  darling  of  the  law.  What  a  fine  com- 
mercial spree  an  "  infant  "  could  have  who  looked 
older  than  his  years  and  had  an  elementary  knowledge 
of  the  law  of  "  infants  "  !  Luckily  they  do  not  teach 
anything  useful  at  educational  establishments,  and 
the  "  infant  "  never  learns  about  his  glorious  legal 
status  until  it  is  too  late  to  exploit  it. 

But  a  married  woman  can,  and  does,  have  a  real 
good  time  at  the  expense  of  her  own  particular 
tyrant,  man.  Recently  at  Quarter  Sessions  a 
man  was  accused  of  stealing  the  spoons,  and  his  wife 
was  accused  of  receiving  the  property  knowing  it  to 
have  been  stolen.  But  it  was  pointed  out  that  it 
was  one  of  the  rights  of  a  married  woman  to  receive 
whatever  her  husband  happened  to  bring  home,  and 
the  judge  directed  an  acquittal. 

There  are  several  pretty  little  distinctions  in  the 
criminal  law  in  favour  of  the  married  lady,  but 

163  m  2 


THE  LAW  AND  THE  POOR 

perhaps  it  is  not  seemly  to  advertise  them  overmuch. 
When  we  come  to  so-called  civil  matters,  the  lady 
who  does  not  know  and  exercise  her  legal  privileges 
is  indeed  a  rara  avis.  How  many  of  the  debt- 
collecting  cases  in  the  County  Court  are  concerned 
with  the  good  lady  who  runs  into  debt  with  the 
tally-man  or  other  tradesman  to  the  husband 
unknown  ?  True,  in  many  of  these  the  husband  has 
a  possible  defence,  but  the  good  man  is  generally  a 
sporting,  careless  fellow,  and  pays  his  five  shillings 
a  month  in  the  belief  that  debt  is  a  natural  sequence 
of  matrimony. 

But  when  it  comes  to  committing  wrongs — or 
torts,  to  use  the  Norman  slang  of  the  law — the 
married  woman  is  the  only  legal  personality  that  is 
privileged  to  forget  her  duty  to  her  neighbour  at 
someone  else's  expense.  Her  unhappy  husband  is 
always  liable  for  the  damages  and  costs,  although  he 
may  have  done  his  best  to  hinder  the  wrong  that  has 
been  done.  If  in  his  absence  on  the  daily  round  the 
good  lady  slanders  her  neighbour's  wife,  or  tres- 
passes on  her  neighbour's  garden  to  commit  the 
further  wrong  of  slapping  her  neighbour's  infant, 
the  husband,  for  the  purposes  of  paying  damages,  is 
regarded  by  the  law  as  being  a  joint  offender.  The 
law  supposes  that  a  wife  acts  under  her  husband's 
directions.  When  they  told  Mr.  Bumble  that,  he 
replied  in  the  immortal  phrase,  "  If  the  law  supposes 
that,  the  law  is  a  ass — a  idiot.  If  that's  the  eye 
of  the  law,  the  law's  a  bachelor ;  and  the  worst  I 
wish  the  law  is,  that  his  eye  may  be  opened  by 
experience — by  experience." 

164 


FLAT-TRAPS  AND   THEIR   VICTIMS 

It  does  seem  a  bit  hard  on  the  poor  man  certainly. 
If  he  keeps  a  dog  the  animal  may  have  his  first  bite 
at  his  neighbour  free  of  expense,  and  when  he  gets 
to  hear  about  it  he  can  send  the  dog  away.  But 
with  a  wife  there  is  no  question  of  scienter.  You 
may  not  suspect  that  your  good  lady  is  given  to 
slander,  assault  and  such  like  indiscretions,  but,  if  it 
so  happens,  you  have  to  pay.  Nor  do  I  see  what 
steps  you  can  take  to  hinder  the  lady  from  trespasses 
which  she  has  the  mind  to  commit.  For  if  you  were 
to  place  her  under  lock  and  key  I  believe  a  senti- 
mental High  Court  judge  would  grant  her  a  habeas 
corpus  that  she  might  go  out  again  into  the  wide, 
wide  world  and  exercise  her  undoubted  right  of 
committing  wrong  at  her  husband's  expense. 

And  I  set  down  these  disadvantages  of  husbandry 
as  some  sort  of  excuse  for  the  meanness  and  dis- 
honesty of  the  man  who  uses  "  his  wife's  name  "  to 
protect  his  assets  and  injure  his  creditors.  I  have  in 
my  mind  a  commercial  married  man  auditing  in  his 
debit  and  credit  mind  the  matrimonial  balance 
sheet.  "  See,"  he  says,  "  my  liabilities  under  the 
law  of  husband  and  wife.  Surely  there  must  be 
some  assets  of  the  relationship  in  which  I  am  entitled 
to  participate ! "  Then  he  studies  the  Married 
Women's  Property  Act,  and  chuckles.  Whether 
this  is  so  or  not,  there  is  no  doubt  that,  since  the 
Act  of  1882,  "  Everybody's  doing  it,"  and  when  the 
bailiffs  come  in  the  furniture  and  the  stock-in-trade 
are  always  found  to  be  "  in  the  wife's  name."  It  is 
a  form  of  conspiracy,  you  would  say,  and  the  police 
should  put  a  stop  to  it,  but  "  Old  Father  Antic  the 

165 


THE  LAW  AND  THE  POOR 

Law  "  has  his  answer  for  you  there — a  wife  cannot 
be  guilty  of  conspiracy  with  her  husband,  for 
husband  and  wife  are  one. 

There  was  a  story  illustrating  the  prevalence  of 
this  custom  in  the  precincts  of  Strangeways,  Man- 
chester. Mr.  Isaacs,  who  had  been  absent  from 
business  for  some  time,  returned  to  his  workshop 
looking  pale  and  white  and  very  weak.  A  sympa- 
thetic neighbour  put  his  head  in  at  the  door,  and, 
full  of  pity,  said  : 

"  Dear  me,  dear  me,  you  look  very  ill,  mine  friend. 
Vot  is  the  matter  with  you  ?  " 

"  Ach,"  groaned  Isaacs,  "  I  have  had  a  terrible 
time,  a  shocking  bad  time." 

"  Vot  vas  it  all  about  ?  " 

"  I  vill  tell  you,"  replied  Isaacs.  "  The  veek 
before  last  two  doctors  came  to  mine  house  and  took 
avay  mine  appendix." 

"  Bah  !  "  muttered  his  friend  contemptuously. 
"  I  vonder  at  you.  That  vos  all  you  own  fault : 
you  should  have  put  it  in  the  vife's  name.  Then 
they  could  not  touch  it." 

The  story  might  be  told  in  a  Scot's  accent,  or 
even  a  Welsh  one  for  that  matter,  and  it  would  re- 
present with  equal  truth  the  prevalent  outlook  of 
mankind  on  the  commercial  advantages  of  matri- 
mony. I  by  no  means  desire  to  suggest  that  "  the 
wife's  name  "  is  made  a  baser  use  of  by  the  eastern 
communities  of  Strangeways  and  Whitechapel  than 
among  the  fair-haired  Saxons  of  Surbiton  and 
Chorlton-cum-Hardy. 

There  are  many  people  who  see  no  wrong  in 
166 


FLAT-TRAPS   AND  THEIR  VICTIMS 

doing  what  is  within  the  law,  and  there  has  always 
been  a  human  tendency  to  score  off  one's  brother 
man  by  a  smart  trick  since  the  days  of  Jacob  and 
Esau.  The  fool  will  always  be  outwitted  by  the 
discreet  ones  of  the  world,  who  justify  their  ways 
by  reminding  us  that  we  are  only  bound  to  obey 
the  letter  of  the  law,  and  that  there  is  no  duty  cast 
upon  us  to  interpret  and  respect  its  spirit. 

And  simple  charitable  folk  will  say  that  after  all 
things  may  really  be  quite  honest  and  straight- 
forward, and  it  is  only  the  stingy  creditor  who  sees 
fraud  and  the  ungenerous  judicial  mind  that  finds 
in  the  constant  repetitions  of  a  series  of  happenings 
an  intention  in  the  parties  to  whom  the  events 
occur  to  wrong  their  neighbours. 

For  why  should  not  John  Smith  put  over  the  door 
of  his  shop  "J.Smith,"  and  how  can  the  pleasant, 
careless  fellow  pay  his  debts  in  these  bad  times, 
and  why  do  those  wholesale  curmudgeons  press  for 
their  money  and  weary  of  John's  winning  smile 
and  dangling  tales  of  future  payment  ?  If  creditors 
won't  wait  it  is  really  very  foolish  in  these  days  to 
sue  for  the  money  and  put  the  bailiffs  in.  For  friend 
John  is  away  at  the  races  and  when  they  come  and 
seize  the  stock  and  effects  of  "J.  Smith  "  there  is 
Mrs.  Smith,  dear,  good  lady,  to  whom  of  course 
everyone  knows,  or  ought  to  know,  the  business 
belongs. 

Is  not  she  a  married  woman  ?  Cannot  she  trade 
in  her  own  name  ?  Is  not  her  name  over  the  door — 
well,  not  her  name  exactly,  but  her  initial — her 
full  name  is  Jane  Smith — and  as  for  her  husband, 

167 


THE  LAW  AND  THE  POOR 

he  has  never  been  anything  but  a  servant  of  hers, 
and  now  she  is  going  to  run  the  business  herself  ! 
In  due  course  of  evolution,  no  doubt,  we  shall 
breed  this  dishonesty  out  of  the  race,  or  else  the  kind 
of  poor,  simple  tradesman  who  gives  credit  without 
inquiry  will  become  extinct. 

At  present  there  are  quite  a  number  of  people 
who  regard  laws  not  so  much  as  guides  to  good 
conduct,  but  as  difficulties  to  be  overcome  in  the 
obstacle  race  of  life.  A  learned  king's  counsel,  a 
well-known  expert  in  bankruptcy  and  bills  of  sale, 
told  me  of  an  interview  he  had  with  a  secretary 
of  a  social  society  who  came  to  ask  him  to  deliver 
a  lecture.  The  secretary  explained  that  their  mem- 
bers were  mostly  cabinet  makers  and  small  furni- 
ture dealers,  and  they  had  a  meeting  and  a  dis- 
cussion every  month.  The  king's  counsel  agreed 
to  come,  and  asked  what  sort  of  subject  they  would 
like  him  to  speak  about. 

"  Well,"  said  the  secretary,  "  our  president, 
Mr.  X ,  you  may  know  him " 

The  king's  counsel  shook  his  head. 

"  Well,  he  has  been  bankrupt  twice — I  thought 
you  might  have  met  him.  He  proposed  a  very 
good  subject,  and  the  committee  were  quite  pleased 
with  it." 

"  And  what  did  he  suggest  ?  " 

"  Well,  seeing  we  are  nearly  all  interested  in 
the  furniture  trade,  he  thought  there  would  be  a 
good  turn  up  if  you  would  come  and  lecture  on  the 
Bills  of  Sale  Acts  and  how  to  avoid  them." 

And  I  suppose  a  brainy  man,  with  a  good  wife, 
168 


FLAT-TRAPS   AND  THEIR  VICTIMS 

and,  what  is  almost  as  rare  nowadays,  a  good  bill 
of  sale,  can  live  on  nothing  for  about  as  long  as  it 
can  be  done. 

That  candid  poet,  Arthur  Hugh  Clough,  pointed 
out  many  years  ago  that  the  ancient  decalogue 
did  not  cover  all  our  sinful  modern  ways,  and 
amended  the  eighth  to  run  thus  : 

Thou  shalt  not  steal ;   an  empty  feat 
When  it's  so  lucrative  to  cheat. 

And  surely  we  may  ask,  Why  should  this  miserable 
cheat  nourish  among  decent  citizens  of  to-day? 
Should  not  a  man  or  woman  be  made  to  trade  in 
his  or  her  own  name  ?  In  a  business  community 
it  is  almost  impossible  to  make  adequate  inquiries 
before  you  start  trading,  and  why,  if  you  come  to 
think  of  it,  should  an  individual  desire  to  trade  in 
any  but  his  own  name  ?  The  frauds  that  are 
committed  may  not  be  very  serious,  but  all  forms 
of  cheating  and  sharp  dealing  are  detrimental  to 
trade,  and  trade,  after  all,  is  the  basis  of  our  national 
pre-eminence.  It  seems  particularly  undesirable  in 
a  nation  that  prides  itself  on  its  domestic  purity 
that  "  the  wife's  name  "  should  be  a  symbol  of 
dishonesty.  If  we  cannot  attain  to  a  decent  code 
of  commercial  morality  without  it  we  shall  have  to 
ask  our  four-hundred-pound  legislators  for  yet 
another  statute.  "  One  man,  one  name,  and  make 
him  trade  in  it,"  would  be  well  received  by  all  the 
honest,  rich  and  poor,  throughout  the  country. 

I  have  dealt  at  some  length  with  this  question 
of  putting  goods  in  the  wife's  name  because  I  doubt 
if  folk  whose  business  does  not  take  them  into  the 

169 


THE  LAW  AND  THE   POOR 

County  Court  have  any  idea  how  prevalent  it  is 
and  what  a  very  present  help  it  is  to  the  man  who 
is  living  upon  his  neighbours  by  some  semi-fraudulent 
business.     Every  now  and  then  the  setter  of  flat- 
traps   catches   a   victim   too   strong   and  lusty  to 
remain  in  the   trap.     The   shoddy  gold  watch  is 
returned,   the  bogus  business  is  thrown  back  on 
the  exploiter's  hands,  the  company  promoter  who 
has  annexed  the  savings   of  the   victim  by  false 
promises  is  sued  for  damages  for  deceit.     In  some 
of  these  cases  by  pertinacity  and  the  spending  of 
more  money  a  triumphant  judgment  will  be  obtained 
by  the  fly  against  the  spider.     But  there  it  ends. 
When  the  high  bailiff  visits  the  web  he  is  politely 
informed  that  it  is  part  of  the  wife's  separate  estate, 
every  thread  in  the  web  is  covered  by  a  bill  of  sale, 
and  if  you  try  to  imprison  the  old  spider  for  debt 
you  would  find  the  greatest  difficulty  in  proving 
his  means  to  the  satisfaction  of  the  Court.     Bank- 
ruptcy has  no  terrors  for  the  old  fellow.     You  will 
probably  find  that  he  has  been  there  before  and 
rather  likes  its  old-world  dusty  crannies  and  the 
peaceable  formulae  of  its  schedules  and  accounts. 

No  doubt  it  is  very  difficult  to  draft  laws  that  the 
wicked  cannot  wrest  from  their  righteous  purpose 
and  use  for  iniquity.  But  the  law  plays  into  the 
hands  of  the  knave  by  its  verbosity  and  diffuseness 
and  the  great  mass  and  complexity  of  it,  which  the 
knave  studies  with  as  great  care  and  astuteness  as 
the  lawyers  and  judges  whose  duty  it  is,  within  the 
four  corners  of  the  law,  to  prevent  his  wrongdoing. 
When  it  is  enacted    "  Thou  shalt  not  steal,"    the 

170 


FLAT-TRAPS   AND   THEIR   VICTIMS 

Court  knows  where  it  stands,  but  that  is  a  far  more 
easy  statute  to  construe  than  anything  the  parlia- 
mentary draftsman  turns  out  to-day.  If  we  could 
get  a  short  statute  of  one  clause,  "  Thou  shalt  not 
cheat,"  with  an  appropriate  schedule  containing  a 
tariff  of  fines  and  imprisonment,  I  think  magistrates 
could  do  a  good  deal  to  cleanse  the  cities  of  a  great 
many  low  ruffians  who  make  their  living  by  swindling 
the  poor  and  make  the  law  as  it  stands  their  attorney 
to  collect  the  spoils. 


71 


CHAPTER   IX 

POVERTY   AND    PROCEDURE 

Therefore  I  counsel  you,  ye  rich,       have  pity  on  the  poor. 
Though  ye  be  mighty  at  the  law       be    ye    meek    in    your 

deeds. 
The  same  measure  ye  mete  wrong  or  right 

Ye  shall  be  weighed  therewith  when  ye  go  home. 

To  the  poor  the  Courts  are  a  maze     if  he  plead  there  all  his 

life, 
Law  is  so  lordly  and  loth  to  end  his  case  ; 

Without  money  paid  in  presents       Law  listeneth  to  few. 

Piers  Plowman. 

We  have  moved  along  a  little  since  the  days  of 
Edward  III.,  and  if  Piers  Plowman  were  with  us  to- 
day he  would  see  no  visions  of  "  money  paid  in 
presents"  to  State  servants,  at  all  events  not  to  the 
judiciary.  Bacon  was  the  last  Lord  Chancellor  who 
indulged  this  evil  habit,  and  if,  as  his  admirers 
tell  us,  he  was  at  the  time  producing  his  own  plays 
on  sharing  terms  with  impecunious  actors,  one  can 
understand  the  necessity  of  it  whilst  condemning 
the  practice.  Although  we  have  made  justice  pure 
enough  in  this  country  and  not  directly  purchasable, 
yet  the  rest  of  Piers  Plowman's  indictment  is  true 
enough  of  the  present  time,  and  law  is  still  a  maze 
wherein  the  rich  are  guided  by  the  clever  ones  who 

172 


POVERTY   AND   PROCEDURE 

know  the  way  and  the  poor  too  often  get  lost  for 
want  of  an  honest  guide. 

There  are  many  signs  that  the  public  conscience 
is  being  slowly  awakened  to  the  iniquity  of  one  side 
in  a  law  suit  having  all  the  legal  aid  that  money  can 
buy  and  the  other  side  nothing.  In  criminal  cases 
something  is  already  done  and  a  beginning  is  being 
made  on  the  civil  side  in  the  High  Court  to  give  the 
poor  legal  aid.  These  reforms  do  not  amount  to 
very  much  as  yet,  but  they  are  the  first  steps  towards 
remedying  Piers  Plowman's  grievances  and,  con- 
sidering that  it  is  less  than  six  hundred  years  since 
that  excellent  visionary  made  his  moan  over  the  law 
and  the  poor,  and  the  drawback  poverty  has  in  the 
procedure  of  the  Courts,  there  seems  to  have  been 
no  very  unusual  delay  in  Government  taking  the 
matter  up.  We  may  at  least  congratulate  ourselves 
that  we  have  got  a  scheme  of  some  sort  which  can  be 
amended  and  put  into  a  business  shape  instead  of 
the  Select  Commission  which  reformers  are  generally 
offered  to  keep  them  quiet.  Old  Piers  would  be 
awfully  happy — "  bucked,"  I  think,  is  the  modern 
word — if  he  could  know  that  after  five  hundred  and 
fifty  years  we  were  tackling  the  problems  of  life  that 
worried  him  so  greatly.  In  another  six  hundred 
years  or  so  a  lot  of  the  little  matters  referred  to  in 
this  book  will  get  smoothed  out.  If  you  can  get  into 
the  habit  of  thinking  of  the  world's  progress  in 
centuries  instead  of  months  you  will  find  it  very 
comforting. 

Until  more  is  known  of  these  new  schemes  and 
their  workings  we  must  write  of  the  present  system 

*73 


THE  LAW  AND  THE   POOR 

as  we  know  it,  for  any  change  in  it  will  certainly  be 
slow  enough  and  it  is  something  to  understand  the 
circumstances  of  the  present  in  order  to  see  what 
changes  are  really  required. 

You  may  remember  that  George  Eliot  in  "  The 
Mill  on  the  Floss  "  describes  Mr.  Tulliver  as  saying, 
"  that  in  law  the  ends  of  justice  could  only  be 
achieved  by  employing  a  stronger  knave  to  frustrate 
a  weaker.  Law  was  a  sort  of  cock-fight  in  which  it 
was  the  business  of  injured  honesty  to  get  a  game 
bird  with  the  best  pluck  and  the  strongest  spurs." 

I  do  not  say  for  a  moment  that  Mr.  Tulliver  was 
right,  but  I  think  George  Eliot  shrewdly  described  in 
his  words  the  attitude  of  mind  of  the  man  in  the 
street  towards  the  High  Court  of  Justice.  Cock- 
fighting  was  always  a  popular,  cruel,  and  exciting 
sport,  and  now  that  it  is  done  away  with  the  next 
best  thing  is  to  squeeze  into  the  Divorce  Court  and 
witness  a  real  set-to  between  Chanticleer,  K.C.,  and 
young  Cockerel,  who,  they  say,  will  be  taking  silk 
himself  very  soon  and  will  knock  the  older  bird  out 
of  the  ring. 

Certain  it  is  that  the  poor  have  a  notion,  in  which 
there  is  doubtless  some  truth,  that  the  fact  that  the 
other  side  had  a  better  and  more  expensive  counsellor 
gave  them  a  greater  chance  in  the  legal  lottery.  The 
side  that  can  put  Carson  on  to  bowl  at  one  end  and 
F.  E.  Smith  at  the  other  must  start  at  a  better  price 
than  the  side  which  has  to  rely  on  an  unknown 
amateur  in  the  back  row.  Of  course,  A.  N.  Other 
may  take  some  wickets,  but  the  public  have  a  very 
business-like  belief  that  money  talks,  and  that  the 

174 


POVERTY   AND   PROCEDURE 

verdict  of  the  jury,  like  most  of  the  verdicts  in  life, 
will  turn  out  to  be  on  the  side  which  can  put  in  the 
field  the  most  expensive  team. 

Certainly  I  can  say  without  hesitation  that  work- 
ing men  would  never  have  got  their  due  from  the 
Workmen's  Compensation  Acts  if  each  particular 
poor  workman  had  had  to  fight  for  his  rights  at  his 
own  expense.  It  is  to  the  trade  unions  and  their 
co-operative  litigation  that  the  thanks  of  the  work- 
men are  due  for  preserving  their  rights  under  the 
Act. 

Mr.  Lysons  was  a  Pendleton  collier,  and  had  only 
worked  for  a  few  days  when  he  received  an  injury. 
This  happened  in  1901,  and  at  that  time  the  old  Act 
said  that  no  compensation  could  be  recovered  until  a 
man  had  been  off  work  for  two  weeks.  It  was  argued 
before  me  that  this  being  so,  unless  a  man  was 
employed  for  more  than  fourteen  days  he  could  not 
come  within  the  Act  at  all.  The  argument  did  not 
appeal  to  me,  but  it  did  to  the  Court  of  Appeal,  and 
later  on  again  it  did  not  to  the  House  of  Lords.  So 
the  man  got  his  money. 

But  the  point  of  the  case  is  that  had  not  the  union 
come  forward  to  take  his  case  to  the  House  of  Lords, 
Lysons  would  have  lost  his  compensation,  and  the 
Act  of  Parliament  would  have  been  construed  to 
limit  the  rights  of  the  poor  for  all  time. 

This  particular  case  cost  the  union  six  hundred 
pounds  to  fight,  and  the  point  in  dispute  was  whether 
the  injured  man  was,  or  was  not,  to  receive  six 
shillings  a  week  for  five  weeks.  Several  cases  have 
run  the  same  course.     The  Act  is  obscurely  drafted 

175 


THE  LAW  AND  THE  POOR 

and  capable  of  many  interpretations.  Some  of 
these  that  still  stand  on  the  books  remain  precedents 
only  because  the  workman  has  not  money  enough  to 
carry  the  case  higher  and  has  no  union  behind  him. 

And,  though  in  the  first  instance  a  workman  might 
often  make  shift  to  state  his  case  in  the  County  Court 
himself  and  rely  on  his  own  advocacy  as  to  the  facts 
and  the  judge's  knowledge  of  the  law,  it  is  absurd  to 
suppose  he  could  argue  a  legal  point  in  the  Court  of 
Appeal  or  House  of  Lords  without  assistance. 
Unless  a  trade  union  is  ready  to  take  up  the  case, 
the  only  hope  of  a  man  getting  his  rights  is  through 
the  aid  of  a  speculative  solicitor. 

Such  a  system  has  its  drawbacks  to  the  litigant  and 
the  profession,  and  leads  to  unpleasant  and  unde- 
sirable incidents,  but  it  is  no  use  shutting  one's  eyes 
to  what  is  going  on  every  day  in  every  Court.  Dod- 
son  and  Fogg  have  always  been  looked  down  upon 
ever  since  Sam  Weller  gave  them  away  by  blurting 
out  in  Court  that  it  was  "  a  wery  gen'rous  thing  of 
them  to  have  taken  up  the  case  on  spec,  and  to 
charge  nothing  at  all  for  costs  unless  they  got  them 
out  of  Mr.  Pickwick." 

No  doubt  it  is  very  unprofessional  to  make  such 
an  agreement,  but  with  the  law  as  it  is,  and  the 
poor  with  rights  under  the  law,  how  on  earth  are 
they  to  get  their  rights  unless  there  is  a  speculative 
solicitor  ready  to  risk  a  certain  amount  of  out-of- 
pockets  in  the  hope  of  getting  them  back  with  advan- 
tages from  Mr.  Pickwick  ?  Unless  a  speculative 
solicitor  is  ready  to  back  the  poor  man's  case  with 
gratuitous  services  and  money  enough  for  counsel's 

176 


POVERTY   AND   PROCEDURE 

honorarium,  surveyor's  plans,  doctor's  and  Treasury 
fees,  how  can  the  case  be  launched  at  all  ? 

Indeed,  could  one  be  certain  that  such  a  solicitor 
never  undertook  any  case  unless  he  was  satisfied 
that  his  client  had  right  on  his  side,  should  we  not 
have  to  admit  that  the  speculative  solicitor  was  a 
ministering  angel  engaged  in  a  practice  of  delivering 
the  poor  that  cried,  and  the  fatherless,  and  him  that 
had  none  to  help  him  ? 

And  as  day  by  day  the  poor  have  more  laws  made 
to  guide  them  into  the  way  of  righteousness,  and 
more  statutes  are  passed  with  the  intention  of  making 
the  life  of  the  poor  healthier,  brighter,  and  better, 
and  as,  moreover,  in  this  imperfect  world  the  ser- 
vants of  the  Evil  One  are  always  prowling  round 
to  cheat  the  poor  of  their  rights,  it  would  seem  to 
follow  that  if  Law  Courts  and  litigation  are  to  be 
the  order  of  the  day  we  must  each  of  us  have  a 
panel  lawyer  to  whom  we  can  go  when  we  want  an 
injunction  and  our  habeas  corpus  is  not  up  to  the 
mark. 

For  years  and  years  there  have  been  speculative 
doctors.  No  one  thought  any  the  worse  of  doctors 
because  they  founded  hospitals  and  gave  their 
services  free  of  charge  and  entered  a  caveat  against 
disease  and  death  without  first  getting  something 
on  account  of  costs.  And  why  should  not  we  have 
legal  hospitals  and  out-patient  departments  attached 
to  the  County  Court  where  the  house  physician  is 
the  young  man  who  has  taken  the  best  degrees  in 
law  and  the  visiting  surgeon  is  the  great  leader  of 
the  legal  profession  ? 

l.p.  177  N 


THE   LAW  AND  THE   POOR 

The  idea  is  no  more  ludicrous  in  one  profession 
than  it  is  in  another.  Medicine  has  its  noble  tradi- 
tions of  charity.  Why  should  not  lawyers  set  an 
example  of  self-sacrifice  and  unselfishness  ?  Or  is 
there  some  subtle  essence  in  the  law  that  of  necessity 
destroys  the  favourable  microbes  that  promote 
peace  and  goodwill  among  men  ? 

We  of  the  long  robe  of  the  Inns  of  Court  have 
always  held  in  theory  that  we  were  there  to  take 
on  the  protection  of  any  and  every  suitor.  Please  do 
not  think  when  your  attorney  asks  you  for  counsel's 
fees  that  you  are  hiring  him  by  that  golden  nexus  of 
guineas.  By  no  means.  No  barrister  can  stoop 
to  take  wages  or  salary.  What  you  are  giving  him 
is  a  mere  gratuity,  "  which  a  barrister  cannot 
demand  without  doing  wrong  to  his  reputation." 
And,  that  being  so,  one  might  expect  some  of  the 
wealthier  Templars  to  take  the  ideal  of  their  pro- 
fession at  its  face  value  and  set  up  to  advise  and 
plead  for  the  poor  not  only  without  wronging  their 
reputation  by  demanding  a  gratuity,  but  by  refusing 
to  accept  one. 

In  a  recent  case  much  was  said  of  the  noble  atti- 
tude of  Barrister  A.,  who,  being  a  political  opponent 
of  Barrister  B.,  appeared  for  him  when  he  had  got 
into  trouble — I  use  the  phrase  in  no  technical 
sense.  Correspondence  ensued,  and  some  enthusiasts 
for  the  honour  of  the  profession  said  that  every 
barrister  was  bound  to  take  up  a  case  if  it  was 
offered  him.  I  wonder  what  would  happen  if 
Lazarus  went  knocking  at  the  doors  of  Crown 
Office  Row  and  Pump  Court  with  a  claim  against 

178 


POVERTY   AND   PROCEDURE 

Dives,  but  without  a  gratuity  in  his  hand  ?  Would 
he  get  anyone  to  advise  him  on  evidence  or 
settle  the  indorsement  on  his  writ  ?  One  never 
knows. 

The  atmosphere  of  our  Courts  is  not  all  that  it 
should  be.  I  do  not  refer  to  the  physical  fog  which 
pervades  them,  the  smells  of  which  the  electric 
fans  blow  about  the  building  in  the  sacred  name  of 
ventilation,  but  the  moral  atmosphere  of  our  Courts 
always  seems  to  me  to  suggest  that  the  law  is  an 
appanage  of  the  rich.  By  all  means  let  us  have 
dignity,  decorum,  and  distinctive  dress,  but  if  you 
go  into  the  High  Court,  although  you  may  hear  the 
affairs  of  the  poor  dealt  with  sympathetically  and 
in  a  just  spirit,  the  atmosphere  of  the  Court  is 
well-to-do  and  prosperous.  Everyone  connected 
with  the  duties  seems  to  belong  to  the  upper  middle 
class.  There  is  no  place  at  all  for  the  working  man 
to  play  his  part  except  on  occasion  in  the  jury 
box. 

And  then,  if  the  claim  is  the  claim  of  a  poor  man 
against  a  rich  man,  a  special  jury  is  empanelled  and 
you  get  at  a  greater  cost  a  tribunal  of  the  defen- 
dant's own  class  to  hold  the  scales  of  justice.  And 
though  I  firmly  believe  that  all  do  their  best,  and 
that  speaking  generally  justice  is  well  administered, 
yet  I  can  quite  understand  the  feeling  of  a  poor  man 
entering  a  Court  of  Justice  and  finding  that  the 
judge  who  lays  down  the  law,  the  jury  who  decide 
the  facts,  the  advocates  who  argue  the  case,  and  the 
solicitors  who  instruct  the  advocates  are  all  drawn 
from  a  class  of  the  community  which  the  working 

179  N  2 


THE  LAW  AND  THE  POOR 

man  rightly  or  wrongly  believes  to  be  hostile  to 
his  outlook  on  life. 

If  I  have  not  made  myself  clear,  imagine  your- 
self bringing  an  action  against  a  trade  union,  and 
finding  when  you  came  into  court  that  a  well- 
known  ex-Labour  M.P.  was  on  the  bench,  that  the 
jury  were  chosen  entirely  from  the  working  classes, 
and  that  you  were  only  allowed  to  be  represented 
by  a  next  friend  chosen  from  the  ranks  of  a  par- 
ticular trade  union. 

Would  you,  under  circumstances  of  this  kind, 
even  if  you  were  convinced  of  the  honesty  and  sin- 
cerity of  every  portion  of  the  tribunal,  feel  that 
sense  of  security  in  its  right  decision  which  is  so 
essential  in  a  community  where  law  should  be 
respected  ? 

And  that  this  is  a  real  trouble  and  that  the  Courts 
are  aware  of  its  existence  was  shown  in  a  recent 
judgment  of  Lord  Sumner  in  the  Court  of  Appeal. 
A  learned  judge  in  the  Court  below  in  correctly 
directing  the  jury  as  to  the  effect  of  the  Trades 
Disputes  Act  had  "  added  some  remarks  pointedly 
expressed  which  were  indirectly  a  criticism  of  the 
Act  and  substantially  a  statement  to  the  jury  that 
a  person  who  availed  himself  of  the  defence  afforded 
by  the  Act  was  setting  up  a  dishonest  defence." 
These  remarks  Lord  Sumner  described  as  "  inoppor- 
tune, detrimental  to  the  defendant's  case  and, 
perhaps  worst  of  all,  irrelevant."  He  concluded 
with  quaint  sarcasm  :  "A  judge  in  charging  a  jury 
could  never  safely  indulge  in  irrelevant  observations 
because  he  could  not  be  sure  that  the  jury  would  be 

180 


POVERTY   AND   PROCEDURE 

sufficiently  logical  to  take  no  notice  of  them."  I 
intend  asking  the  Office  of  Works  to  have  that 
painted  up  on  the  walls  of  my  Court.  It  is  worthy 
of  letters  of  gold.  Irrelevancy  is  certainly  the  worst 
of  sins  and  it  is  a  natural  vice  in  most  of  us  only 
to  be  kept  down  by  prayer  and  fasting  from  the 
practice  of  it.  We  all  dislike  some  Act  of  Parlia- 
ment ;  the  Insurance  Act,  the  Ground  Game  Act,  the 
Finance  Act — none  is  so  perfect  that  it  has  not  some 
judicial  enemies.  And  it  is  certainly  very  tempting 
when  you  meet  the  fellow  in  Court  to  give  him  a  bit 
of  your  mind.  But  it  must  not  be.  The  Legis- 
lature is  our  schoolmaster.  Outside  in  the  play- 
ground and  on  vacation  we  can  express  our  opinions 
about  him  freely,  but  in  school — No  ! 

Lord  Sumner  is  perfectly  right  and  when  he  next 
speaks  on  this  subject  I  wish  he  would  point  out 
with  authority  that  this  human  habit  of  irrelevancy 
is  the  constitutional  reason  for  maintaining  the  grand 
jury.  For  centuries  the  King's  Bench  judges  have 
worked  off  their  natural  irrelevancy  in  charging  the 
grand  juries  at  assize  towns  to  the  great  benefit  of 
themselves  and  the  local  papers.  This  national 
safeguard,  this  barrier  between  judicial  irrelevancy 
and  the  public  at  large,  should  not  be  removed  in  a 
careless  spirit.  Our  forefathers  knew  a  thing  or  two. 
The  grand  jury  is  really  a  sound  instrument  of  con- 
stitutional mechanics.  It  is  the  safety  valve  for 
the  blowing  off  of  judicial  steam. 

Lawyers  and  judges  are  certainly  held  in  higher 
esteem  to-day  than  they  were  in  the  past.  Gulliver 
describing  the  contemporary  lawyers  to  his  friend 

181 


THE  LAW  AND   THE  POOR 

and  master,  the  Houyhnhnm  says :  "  there  was  a 
society  of  men  among  us,  bred  up  from  their  youth  in 
the  act  of  proving,  by  words  multiplied  for  the  pur- 
pose, that  white  is  black,  and  black  is  white,  according 
as  they  are  paid.  To  this  society  all  the  rest  of  the 
people  are  slaves.  For  example,  if  my  neighbour  has 
a  mind  to  my  cow,  he  has  a  lawyer  to  prove  that  he 
ought  to  have  my  cow  from  me.  I  must  then  hire 
another  to  defend  my  right,  it  being  against  all  rules 
of  law  that  any  man  should  be  allowed  to  speak  for 
himself."  In  another  passage  he  inveighs  against 
judges  in  a  strain  of  even  coarser  invective.  "  Now 
your  honour  is  to  know,"  he  says,  "  that  these  judges 
are  persons  appointed  to  decide  all  controversies  of 
property,  as  well  as  for  the  trials  of  criminals,  and 
picked  out  from  the  most  dexterous  lawyers,  who 
have  grown  old  or  lazy  ;  and  having  been  biassed  all 
their  lives  against  truth  and  equity,  lie  under  such  a 
fatal  necessity  of  favouring  fraud,  perjury,  and  op- 
pression, that  I  have  known  some  of  them  refuse  a 
large  bribe  from  the  side  where  justice  lay,  rather 
than  injure  the  faculty,  by  doing  anything  unbe- 
coming their  nature  or  their  office." 

Even  in  1727  the  extravagance  and  exaggerations 
of  these  passages  must  have  diminished  the  force  of 
the  satire,  but  one  must  remember  that  under  the  old 
forms  of  procedure  and  law  of  evidence  all  sorts  and 
conditions  of  chicanery  were  possible,  and  the  search 
after  truth  was  clogged  and  hampered  by  techni- 
calities that  made  for  injustice. 

Crabbe,  in  "  The  Borough,"  draws  a  picture  of 
Swallow,  the  lawyer,  "  a  hard,  bad  man  who  preyed 

182 


POVERTY   AND    PROCEDURE 

upon  the  weak,"  but  he  had  sufficient  insight  into 
the  reality  of  things  to  see  that  : 

Law  was  design 'd  to  keep  a  state  of  peace  ; 
To  punish  robbery,  that  wrong  might  cease  ; 
To  be  impregnable  ;   a  constant  fort, 
To  which  the  weak  and  injured  might  resort. 

And  the  main  reason  that  the  law  in  old  days  failed 
in  a  great  measure  to  carry  out  its  mission  to  protect 
the    poor    was    the    extraordinary    mystery    and 
obscurity  of  it.     Where  law  is  a  jargon  of  techni- 
calities foreign  to  the  business  ideas  of  the  people  an 
immoral  man  who  is  a  lawyer  has  an  easy  task  before 
him  to  defraud  the  weak.     In  our  own  time  the 
worst    frauds    committed    by   lawyers    have    been 
mortgage  frauds  where  the  deeds  were  deposited 
with  solicitors  who  converted  them  to  their  own  use. 
Our  land  transfer  system  is  a  relic  of  the  past ;  it  is  a 
mystery  that  no  plain  citizen  can  comprehend.     It 
is  necessary  for  him  to  employ  a  lawyer  to  carry  out 
the  smallest  transfer  of  land  and  it  is  necessary  for 
him  to  rely  on  the  statement  that  the  land  has  been 
conveyed  to  him  and  that  the  title  deeds  are  in  order. 
The  technical  obscurity  of  the  transaction  opens  the 
door  to   frauds  that   would  be  impossible   with    a 
modern,   businesslike,  public  land  transfer  depart- 
ment. 

And  as  technicalities  in  law  and  procedure  were 
gradually  abolished  so  we  find  the  pictures  of  lawyers 
in  contemporary  fiction  becoming  less  ignoble, 
though  there  will  always  be  more  romance  in  the 
story  of  a  fraudulent  lawyer  leading  a  double  life 
than  in  the  career  of  a  blameless  practitioner  who 

183 


THE  LAW  AND   THE   POOR 

serves  his  clients  honourably  during  office  hours  and 
returns  punctually  to  his  accustomed  suburb  at  the 
appointed  dinner  hour. 

Though  we  have  done  away  with  much  legal 
fiction  and  cumbrous  technicality  we  cannot  greatly 
boast  of  the  simplicity  of  our  legal  procedure.  Take 
the  County  Court  Practice  for  instance.  Here  is  a 
Court  primarily  designed  to  adjudicate  on  the  simple 
disputes  of  poor  people.  There  are  two  practice 
books.  They  cost  over  a  guinea  apiece,  they  consist 
of  hundreds  of  pages  and  are  absolutley  incompre- 
hensible except  to  the  trained  lawyer.  This  being 
so  it  is  clear  that  the  lawyer  is  as  necessary  to  the 
poor  man  as  he  is  to  the  rich.  It  is  a  sign  of  grace 
in  the  matter  of  procedure  that  whilst  this  chapter  is 
in  the  writing  we  have  some  new  rules  issued  about 
giving  poor  people  assistance  in  High  Court  actions. 
Up  to  now  the  procedure  in  forma  pauperis  has  not 
been  of  practical  benefit  to  the  poor  except  in 
enabling  an  occasional  important  appeal  to  reach  the 
House  of  Lords.  It  is  too  soon  to  say  whether  these 
new  rules  will  meet  their  object.  Shortly,  the  scheme 
is  that  a  poor  person — meaning  one  who  can  satisfy 
the  judge  that  he  is  not  worth  fifty  pounds — will 
have  counsel  and  solicitor  assigned  to  him  from  a 
rota.  After  that  his  case  will  be  conducted  free  of 
costs  or  fees.  If  he  succeeds  the  solicitor — but  in 
no  case  the  counsel — will  get  costs. 

Much  depends  of  course  on  the  spirit  in  which  this 
is  worked,  but  it  only  refers  to  the  High  Court — 
which  is  not,  speaking  generally,  the  poor  man's 
Court — and  it  seems  unlikely  on  the  face  of  it  that  a 

184 


POVERTY   AND   PROCEDURE 

scheme  of  this  kind,  with  no  one  in  particular  to 
look  after  it  and  advertise  its  existence,  will  do  away 
with  the  undesirable  activity  of  the  speculative 
solicitor.  One  wishes  it  well,  but  except  perhaps  in 
relation  to  divorce  cases  it  does  not  appear  on  paper 
to  be  of  great  practical  use. 

The  fact  is  that  it  is  not  a  very  hopeful  thing  to 
go  to  lawyers  and  committees  of  lawyers  for  reforms 
unless  you  have  the  driving  power  of  the  business 
man  behind  them.  Nothing  was  to  be  more  disas- 
trous according  to  legal  prophecy  than  the  institu- 
tion of  the  Public  Trustee.  No  reform  has  done 
more  to  mitigate  domestic  worries  and  anxiety  than 
this  beneficent  institution.  Lawyers  and  laymen 
nowadays  concur  in  casting  their  troubles  upon 
him  and  sheltering  themselves  and  their  clients 
beneath  his  protecting  wing.  If  we  are  ever  to 
have  a  proper  system  of  legal  advice  for  the  poor  it 
will,  I  think,  have  to  be  made  an  official  depart- 
ment with  a  business  head  of  affairs  and  attached 
lawyers.  It  might  perhaps  be  added  to  the  duties 
of  Labour  Exchanges,  but  in  any  case  it  should  be 
a  department  of  the  Board  of  Trade,  and  it  should 
have  branches  throughout  the  country  and  power  to 
help  the  poor  in  all  the  Courts  of  the  country. 
A  device  for  suing  in  forma  pauperis  working  only 
in  London,  such  as  is  set  up  by  the  new  rules,  cannot 
be  of  much  avail  in  tackling  the  problem  of  placing 
legal  advice  and  assistance  at  the  call  of  the  poor. 

I  wish  some  experiments  of  a  voluntary  nature 
could  be  made  of  a  more  extended  character  than 
the  poor  man's  lawyer  societies  that  are  attached 

185 


THE  LAW  AND   THE  POOR 

to  University  settlements,  and  do  good  work  in 
advising  the  poor.  It  is  really  in  Court  that  a 
poor  man  wants  assistance.  I  often  think  that  a 
poor  man  or  woman  coming  into  a  Court  for  the 
first  time  is  like  the  average  middle-class  Englishman 
when  he  finds  himself  on  Calais  Pier  without  a 
word  of  French  speech  at  his  command  and  entire 
ignorance  of  the  ways  of  the  douane.  How  he  clings 
to  a  friendly  interpreter  with  a  gold  band  round  his 
hat.  How  extravagantly  he  rewards  him  when  he 
and  all  his  luggage  are  at  length  safely  in  the  train. 

And  why  should  not  we  encourage  an  amateur 
legal  interpreter  in  our  County  Courts  just  as  we 
welcome  missionaries  in  our  police  Courts.  I 
should  like  to  see  practising  in  each  Court  an  official 
friend  of  the  poor,  ready  to  state  the  case  of  a  poor 
man  or  woman  who  sought  his  assistance.  There  is 
an  existing  section  of  the  County  Courts  Act  allowing 
a  friend  to  appear  for  anyone  by  leave  of  the  judge 
if  he  does  not  do  it  for  fee  or  reward,  and  on  that 
foundation  something  might  be  built. 

I  remember  a  clergyman,  Father  Gething,  appear- 
ing for  an  old  army  pensioner  against  an  insurance 
society  with  complicated  rules,  and  asking  to  be 
allowed  to  address  me,  and  conduct  the  old  man's 
case.  Sir  William  Cobbett,  not  having  in  his  mind 
for  the  moment  the  section  I  refer  to,  objected. 
I  asked  Father  Gething  whether  he  was  going  to 
recover  any  "  fee  or  reward  "  for  acting  in  the  case. 

"  Certainly  not,"  replied  the  reverend  gentleman. 

"  But  perhaps,"  1  continued — somewhat  mis- 
chievously— "  Sir  William  is  going  to  contend  that 

186 


POVERTY   AND   PROCEDURE 

the  word  '  reward  '  in  the  statute  means  not  only 
reward  in  this  world,  but  the  next." 

Sir  William  smiled  and  shook  his  head  at  me  in 
dignified  reproof.  He  was  not  going  to  argue  this,  and 
with  his  very  good  will  and  assistance  the  clergyman 
conducted  the  case,  and  in  the  end  secured  a  victory. 

In  the  Army  Courts-Martial  a  prisoner  is  always 
allowed  a  friend  to  advise  him  and  to  take  a  limited 
part  in  the  proceedings,  and  I  cannot  help  thinking 
that  long  before  the  poor  man  has  his  panel  lawyer 
voluntary  charity  will  be  allowed  to  supply  him  with 
a  "  friend,"  who  shall  be  trained  in  the  law,  but 
ready  to  give  his  services  to  the  poor  without  fee 
or  reward. 

Many  will  think  that  the  suggestions  that  I  have 
sketched  out  of  assistance  to  poor  people  are 
chimerical  and  that  in  any  case  they  are  likely  to 
be  costly  and  that  the  grievance,  such  as  it  is,  is 
not  worth  the  money  to  be  spent  on  the  remedy. 
At  one  time  I  seem  to  be  calling  out  for  no  lawyers 
and  here  I  am  demanding  more  lawyers.  The 
inconsistency  is  only  apparent.  In  all  legal  reforms  I 
place  in  the  forefront  conciliation.  I  want  to  see 
the  French  "  preliminary  of  conciliation  "  applied 
without  delay  to  all  small  cases  and  I  want  the 
judge  of  the  County  Court  to  be  clothed  with  the 
duty  of  the  French  jugc  de  paix,  whose  business  it 
is,  in  the  first  instance,  to  bring  the  parties  together 
and  get  them  to  shake  hands.  Only  when  that 
fails,  or  in  those  cases  where  litigation  is  essential 
and  necessary  to  the  proper  determination  of  a  real 
dispute,  should  I  ask  the  State  to  assign  counsel 

187 


THE  LAW  AND  THE  POOR 

and  solicitor  to  the  poor.  If  a  poor  man  has  an 
honest  suit  with  a  rich  man  it  should  be  a  point  of 
honour  with  the  Courts  to  see  that  he  is  not  at  a 
disadvantage  in  their  procedure. 

But  merely  providing  a  poor  man  with  lawyers 
will  not  alone  work  the  miracle.  Money  must  be 
found  to  pay  his  witnesses  and  prepare  his  case, 
and  this  is  even  more  necessary  in  civil  cases  than 
in  the  defence  of  prisoners  where,  as  we  shall  see 
when  we  come  to  consider  criminal  matters,  the 
State,  whilst  providing  legal  aid,  has  stopped  short 
of  providing  what  may  be  still  more  necessary, 
financial  assistance  for  necessary  evidence,  some  of 
which  may  be  of  an  expert  and  expensive  character 
wholly  out  of  reach  of  a  poor  man. 

Piers  Plowman  naturally  threw  the  whole  blame 
on  the  lawyers  who  went  about,  as  he  said  : 

Pleading  the  Law,  for  pennies  and  for  pounds, 

Unlocking  their  lips  never  for  love  of  our  Lord. 

But  I  cannot  for  myself  see  why  a  lawyer  or  a  doctor 
should  work  for  nothing  any  more  than  a  business 
man  or  an  author,  and,  if  we  knew  the  truth,  I 
expect  we  should  find  that  old  Piers  himself  invented 
his  vision  as  much  in  the  blessed  hope  of  royalties 
as  "  for  the  love  of  our  Lord." 

I  do  not  want  charity  for  the  poor  in  our  legal 
procedure,  nor  do  I  wish  to  see  litigation  multiplied 
by  cheap  remedies.  On  the  contrary,  I  want  every 
effort  made  to  cut  down  litigation  to  a  minimum, 
but  when  a  lawsuit  takes  place  I  want  it  to  be  a 
fair  fight  and  no  favour,  with  each  side  equally 
well  equipped  for  the  fray. 

188 


CHAPTER   X 

CRIME   AND   PUNISHMENT 

The  penal  laws  of  the  British  Empire  are,  by  foreign  writers, 
charged  with  being  too  sanguinary  in  the  cases  of  lesser  offences. 
They  hold  that  the  punishment  of  death  ought  to  be  inflicted 
only  for  crimes  of  the  highest  magnitude  ;  and  philanthropists 
of  our  own  nation  have  accorded  with  their  opinion.  Such 
persons  as  have  had  no  opportunity  of  inquiring  into  the  subject 
will  hardly  credit  the  assertion  that  there  are  above  one  hundred 
and  sixty  offences  punished  by  death,  or,  as  it  is  denominated, 
without  benefit  of  clergy. 

Anthony  Knapp  and  William  Baldwin  : 
Preface  to  "  The  Newgate  Calendar,"  1824. 

The  progress  we  have  made  in  the  reform  of 
criminal  law  in  the  last  hundred  years  is  really 
remarkable.  In  very  recent  days  we  have  at  last 
allowed  the  prisoner  to  give  his  evidence  of  the 
matter  he  is  charged  with  if  he  desires  to  do  so.  We 
have,  under  certain  restricted  conditions,  supplied 
him  with  legal  assistance,  and,  best  of  all,  there  is  at 
length  a  Court  of  Criminal  Appeal. 

It  is  interesting  and  encouraging  when  your  mind 
has  a  bent  towards  legal  reform  to  see  how  past 
reforms  have  come  about.  As  recently  as  1826 
prisoners  accused  of  felony  were  not  allowed  counsel, 
and  the  Rev.  Sydney  Smith,  who  had  a  winning  way 
of  stating  the  case  of  the  Law  and  the  Poor  in  his 
own  day,  was  pleading  in  the  Edinburgh  Review  for 

189 


THE  LAW  AND  THE   POOR 

a  reform  of  this  matter.  One  would  have  thought 
then,  as  one  often  thinks  now,  that  a  mere  statement 
of  the  issue  would  have  been  sufficient.  This  is  a 
picture  of  things  as  they  were.  "  There  are  seventy 
or  eighty  prisoners  to  be  tried  for  various  offences  at 
the  Assizes  who  have  lain  in  prison  for  some  months  ; 
and  fifty  of  whom,  perhaps,  are  of  the  lowest  order 
of  the  people,  without  friends  in  any  better  condition 
than  themselves,  and  without  one  single  penny  to 
employ  in  their  defence.  How  are  they  to  obtain 
witnesses  ?  No  attorney  can  be  employed — no 
subpoena  can  be  taken  out ;  the  witnesses  are  fifty 
miles  off  perhaps — totally  uninstructed — living  from 
hand  to  mouth — utterly  unable  to  give  up  their  daily 
occupation  to  pay  for  their  journey,  or  for  their 
support  when  arrived  at  the  town  of  trial — and  if 
they  could  get  there,  not  knowing  where  to  go  or 
what  to  do.  It  is  impossible  but  that  a  human  being 
in  such  a  helpless  situation  must  be  found  guilty  ; 
for  as  he  cannot  give  evidence  for  himself,  and  has 
not  a  penny  to  fetch  those  who  can  give  it  for  him, 
any  story  told  against  him  must  be  taken  for  true 
(however  false)  since  it  is  impossible  for  the  poor 
wretch  to  contradict  it." 

And  yet,  absurd  as  it  seems  to  us  to-day,  the 
prisoner's  right  to  counsel  was  not  obtained  without 
a  severe  struggle.  At  the  back  of  the  mind  of  those 
who  opposed  the  reform  was  the  idea  that  as 
prisoners  were  accused  by  the  Crown  it  was  an  act 
of  disloyalty  to  defend  them.  Ridiculous  as  that 
idea  is  it  still  exists  in  a  form  that  is  interesting  only 
as  showing  that  the  tradition  was  once  a  reality. 

190 


CRIME   AND   PUNISHMENT 

A  King's  counsel  has  to  obtain  leave  from  the 
authorities,  and  pay  a  small  tribute  therefore,  before 
he  can  appear  for  a  prisoner  and  against  the  Crown. 
Leave  is  never  refused,  but  the  existence  of  such  a 
curious  custom  is  only  comprehensible  by  studying 
the  folklore  of  the  subject. 

A  hundred  years  ago  this  folly  sanctioned  by 
antiquity    was    a    reality.     The    defenders    of    the 
position  said  it  was  really  all  done  in  the  interests  of 
the  prisoner.     His  witnesses  were  not  put  on  oath, 
and  this  allowed  them  to  tell  any  falsehood  they 
wished  ;   he  was  saved  the  expense  of  his  counsel — 
as  though  he  preferred  economy  to  hanging — and 
the  judge,  he  was  told,  was  his  counsel — an  arrange- 
ment  that   the   prisoner   cannot   have   been   very 
grateful  for  when  he  heard  his  counsel  on  the  bench 
summing  up   to   the   jury   for  a  conviction.     The 
nonsense  that  was  talked  and  written  on  this  subject 
is  encouraging  to  those  who  want  things  done  to-day. 
Against  all  reforms,  arguments  of  this  kind  have  to 
be  listened  to  and  laughed  out  of  Court,  but  to-day 
we  are  in  a  better  position  than  Sydney  Smith  was, 
for  we  often  find  in  the  official  world  a  human  being 
ready  to  help  on  a  reform  when  the  time  is  ripe  for  it. 
In  his  day  common-sense   and  common  humanity 
had  not  permeated  into  Government  offices,  "  the 
Attorney-General  and  the  Solicitor-General  for  the 
time  being  always  protesting  against  each  altera- 
tion and  regularly  and  officially    prophesying   the 
utter   destruction    of   the   whole   jurisprudence    of 
Great  Britain."     It  was  not  until  ten  years   after 
the    Edinburgh   Review    article    was    written    that 

191 


THE   LAW  AND  THE  POOR 

Parliament  in  August,  1836,  passed  an  Act  to  permit 
prisoners  charged  with  felony  the  right  to  be 
defended  by  counsel.  And  yet  there  are  many  people 
who  think  we  move  too  fast  in  necessary  reforms. 

Sydney  Smith  mentions  as  one  of  the  injustices  to 
the  prisoner  his  inability  to  give  evidence.     This 
remained  a  disability  until  our  own  time  and  was 
only  removed  with  great  difficulty  and  against  the 
advice  of  many  learned  lawyers.     The  folklore  of 
the  subject  is   quite  entertaining.     Our  ancestors 
considered,  from  introspective  knowledge  of  them- 
selves and  their  neighbours,  that  no  one  with  any 
interest  in  a  dispute  was  likely  to  speak  the  truth 
about  it,  they  therefore  did  not  allow  the  parties  to 
a  suit  to  give  any  evidence  at  all.     This  was  the  old 
law  in  both  civil  and  criminal  cases.     Thus  you  may 
remember    that    in    the  great   case   of  Bardell  v. 
Pickwick  neither  plaintiff  nor  defendant  gives  evi- 
dence, because  in  law  at  that  date  they  were  not 
competent  witnesses.     The  inconveniences  of  this  in 
civil  matters  was  patent  to  everyone  but  the  lawyers. 
Writing  on  the  incompetency  of  witnesses  to  give 
evidence,  Bentham  said  with  some  humour, "  in  the 
bosom  of  his  family  the  lawyer  by  the  force  of  good 
sense  returns  to  the  simple  method  from  which  he  is 
led  astray  at  the  bar  by  the  folly  of  his  learning.     No 
one  is  so  deeply  tainted  with  his  judicial  practice  as 
to  apply  its  rules  to  his  domestic  affairs.     If  you 
would  represent  madness — but  a  madness  where  all 
is  melancholy  and  unintelligible— you  have  only  to 
imagine  an  English  barrister  carrying  into  ordinary 
life  the  fictions,  the  rules,  and  the  logic  of  the  bar." 

192 


CRIME   AND   PUNISHMENT 

Certainly  we  cannot  believe  that  when  Sergeant 
Snubbin  returned  to  his  house  and  found  a  dispute 
raging  between  his  cook  and  his  butler  that  he  tried 
to  find  out  the  truth  about  it  without  hearing  what 
either  of  them  had  to  say. 

In  1846  when  County  Courts  were  established,  the 
parties  and  their  wives  were  allowed  to  give  evidence, 
and  so  obvious  were  the  advantages  of  this  that  in 
1851  Lord  Brougham  passed  the  Evidence  Amend- 
ment Act  extending  the  system  to  other  Courts. 
The  only  thing  that  surprises  us  to-day  is  that  there 
could  ever  have  been  any  question  about  the  neces- 
sity of  allowing  parties  to  give  evidence  if  it  was 
really  desired  that  they  should  have  justice. 

But  we  still  clung  to  the  right  of  the  prisoner  to 
keep  his  mouth  shut,  and  in  our  insular  way  boasted 
of  his  privilege.  Thackeray  is  horrified  by  the 
examination  of  the  prisoner  in  the  ordinary  French 
way.  "  In  England,  thank  heaven,  the  law  is  more 
wise  and  merciful !  "  He  sees  in  the  French  Govern- 
ment advocate  an  official  seeking  in  every  way  to 
draw  confessions  from  the  prisoner  to  perplex  and 
confound  him  and  to  do  away  with  any  effect  that 
his  testimony  might  have  on  the  jury,  and  he  thanks 
heaven  openly  that  we  should  "  never  have  acted 
as  these  Frenchmen  have  done."  What  really 
troubled  Thackeray's  patriotic  mind  was  the 
indecency  of  asking  the  prisoner  any  question  at  all. 
Victorian  Englishmen  of  all  grades  were  peculiarly 
proud  of  our  criminal  administration  of  justice  and 
considered  the  privilege  of  the  prisoner  to  keep  his 
mouth  shut  was  the  keystone  of  the  edifice. 

l.p.  193  o 


THE  LAW  AND   THE   POOR 

Dickens  approached  the  matter  more  hesitatingly  : 
"  I  wonder,"  he  writes,  "  why  I  feel  a  glow  of 
complacency  in  a  court  of  justice,  when  I  hear  the 
learned  judges  taking  uncommon  pains  to  prevent 
the  prisoner  from  letting  out  the  truth.  If  the  object 
of  the  trial  be  to  discover  the  truth,  perhaps  it  might 
be  as  edifying  to  hear  it  even  from  the  prisoner, 
as  to  hear  what  is  unquestionably  not  the  truth 
from  the  prisoner's  advocate.  I  wonder  why  I  say, 
in  a  flushed  and  rapturous  manner,  that  it  would  be 
'  un-English  '  to  examine  the  prisoner.  I  suppose 
that  with  common  fairness  it  would  be  next  to 
impossible  to  confuse  him  unless  he  lied ;  and  if  he 
did  lie  I  suppose  he  could  hardly  be  brought  to 
confusion  too  soon." 

This  being  the  Victorian  attitude  in  the  matter 
it  was  hardly  to  be  wondered  at  that  the  reform 
was  delayed  until  our  own  day.  Yet  I  doubt  if 
anyone  conversant  with  the  criminal  Courts  would 
doubt  that  although  there  are  cases  where  it  has 
been  to  the  disadvantage  of  the  guilty  to  go  into  the 
witness  box,  it  has  been  of  enormous  value  to  the 
innocent  that  he  can  give  his  own  account  of  things 
to  the  jury. 

There  are  three  recent  Acts  of  criminal  law  reform 
which  have  done  much  to  safeguard  the  interests  of 
innocent  men,  especially  if  they  are  poor.  These 
are  the  Criminal  Evidence  Act,  1898,  the  Poor 
Prisoners  Defence  Act,  1903,  and  the  Court  of 
Criminal  Appeal  Act,  1907.  If  we  could  have  such 
an  outburst  of  legal  reform  every  ten  years  in  other 
subjects  we  should  be  doing  well.     But  it  must  not 

194 


CRIME   AND   PUNISHMENT 

be  thought  that  these  reforms  were  obtained  with- 
out  trouble.     Each  was  strenuously  fought,   year 
by  year,  for  many  many  years  before  the  energy  and 
patience  of  the  reformers  were  crowned  with  success. 
One  would  have  thought   that   the   claim   of  a 
citizen,  charged  with  a  criminal  offence,  to  give  his 
account  of  the  affair  to  the  jury,  if  he  wished  to  do 
so,  was  one  of  those  matters  of  elementary  justice 
that  could  hardly  be  contended  against  at  the  end 
of  the  nineteenth  century,  but  the  fight  against  this 
privilege  was  really  a  very  strenuous  one.     Twenty 
years  before  the  reform  actually  came  the  Bill  had 
been  read  a  second  time  in  the  House  of  Commons  by 
a  majority  of  109,  showing,  at  all  events,  that  the 
lay  mind  of  the  country  had  no  doubt  about  what 
should  be  done.     In  each  succeeding  year,  when  any 
new   offence   was   created   by  Act   of   Parliament, 
there  was  a  special  clause  put  in  to  enable  a  prisoner 
to  give  evidence,  so  that  at  length  there  were  some 
thirty  or  more  Acts  giving  a  prisoner  the  right  to 
give  evidence.     This  made  the  state  of  the  law, 
as  Lord  Herschell  said,  "  utterly  indefensible  and 
ridiculous."     We  were  living  under  two  competing 
systems,    whose    constant    absurdities    were    made 
manifest  in  the  Courts  ;   thus,  if  a  man  was  charged 
with   forging   a   trade   mark   he   was   a   competent 
witness,  if  he  was  charged  with  any  other  forgery 
his  mouth  was  closed. 

Curiously  enough,  owing  to  the  irony  of  our 
party  system,  it  was  the  Conservatives  who  brought 
in  this  reform  and  the  Radicals  who  opposed  it. 
It  was  left  for  Sir  Richard  Webster  to  point  to  the 

195  o  2 


THE   LAW  AND   THE   POOR 

progress  of  all  the  States  of  America,  and  the  experi- 
ence of  our  Colonies,  and  to  ask  that  we  should  not 
lag  behind  in  the  good  work  of  reform.  That  sturdy 
radical,  Mr.  Pickersgill,  was  shocked,  and  elaborated 
the  quaint  argument  that  an  innocent  man  should 
be  debarred  this  privilege  lest  he  might  be  an  igno- 
rant person  who  would  tell  lies,  and  get  confused  and 
muddled,  thereby  prejudicing  his  chance  of  acquittal. 

A  large  body  of  influential  legal  opinion  was  ad- 
verse to  the  Bill,  and  in  the  division  lists  voting 
against  the  reform  you  find  the  names  of  Sam  Evans, 
John  Morley,  W.  S.  Robson,  Lawson  Walton,  and 
other  well-known  Liberals.  It  is  one  of  the  crosses 
that  a  legal  reformer  has  to  bear  that  only  through 
the  services  of  one  or  other  of  the  great  parties  in 
the  State  can  he  hope  to  see  his  pet  dream  materialise 
and  there  seems  a  certainty  that,  if  one  party  is 
converted  to  a  proposal,  the  other  party  makes  a 
point  of  being  diverted  by  it.  Over  and  above  that 
unhappy  difficulty  to  progress  there  is  the  certainty 
that  the  lawyers,  as  a  profession,  will  always  offer 
a  strong  opposition  to  any  proposition  of  legal 
reform,  and,  when  this  is  defeated,  will  fight 
strenuous  little  rearguard  actions  to  cripple  and 
delay  it. 

The  Poor  Prisoners  Defence  Act  met  with  less 
opposition.  It  was  a  comparatively  small  affair, 
and  there  were  a  few  fees  in  it.  Mr.  Justice  Gran- 
tham— whose  merits  as  a  friend  of  the  prisoner  and 
a  humane  judge  are  often  lost  sight  of  in  remem- 
bering his  daring  dives  from  the  bench  into  the  sea 
of  politics — this  good  judge  was  a  keen  supporter 

196 


CRIME  AND   PUNISHMENT 

of  the  movement  for  the  better  defence  of  poor 
prisoners.  He  thought  the  magistrates  ought  to 
ask  the  prisoner  what  his  defence  was,  and  tell 
him  that,  if  he  would  state  it,  they  would  do  all  they 
could  to  assist  him  in  proving  it,  and  that,  if  he 
wanted  evidence,  they  would  adjourn  the  case  and 
get  evidence.  His  ideal  was  that  the  magistrate 
and  the  police  should  assist  a  man  to  prove  his 
innocence,  and  that  any  sort  of  reasonable  defence 
should  be  followed  up  at  the  public  expense. 

The  letter  of  the  Act,  however,  only  gives  the 
poor  prisoner  a  solicitor  and  counsel  and  a  copy  of 
the  depositions.  No  doubt  the  best  is  done  for  him 
that  can  be  under  these  conditions,  but  it  is  not 
the  same  quality  of  legal  defence  that  a  rich  prisoner 
can  obtain  for  money.  Naturally,  counsel  who 
take  these  cases  are  not  men  of  the  greatest  experi- 
ence, and  the  defending  of  prisoners  is  a  difficult 
branch  of  the  act  of  advocacy.  A  story  is  told  of 
a  Scotch  prisoner,  who  had  economically  pretended 
he  was  without  means  in  order  to  save  counsel's 
fees,  calling  out  in  agony  as  he  heard  his  defender 
addressing  the  jury  in  a  very  unconvincing  manner  : 
'  Young  mon,  if  ye'll  sit  doon  at  once  I'll  give  ye 
a  feeve  poun'  note."  Although  the  Act  is  not 
everything  it  might  be,  yet,  undoubtedly,  it  is  a 
move  in  the  right  direction  and  capable,  under  sym- 
pathetic administration,  of  doing  much  good. 

The  Criminal  Appeal  Act  of  1907  has  proved  itself 
of  such  value  already  that  it  becomes  the  more 
amazing  to  read  of  the  difficulty  experienced  in 
getting   it   on   the   Statute   Book.     All   manner   of 

197 


THE   LAW  AND  THE  POOR 

legal  interests  were  banded  together  against  it.  One 
of  the  two  learned  king's  counsel  who  moved  its 
rejection  in  the  House  of  Commons  solemnly  declared 
that  the  cost  of  taking  shorthand  notes  and  the 
expense  of  bringing  a  prisoner  to  London  from  the 
north  of  England  appalled  him  and,  in  his  view, 
"the  machinery  of  the  Bill  must  inevitably  break 
down  ...  it  was  absolutely  unworkable."  The 
second  uttered  mournful  prophecies  of  ruin  :  "to 
substitute,"  he  said,  "  this  most  costly  machinery 
for  the  present  system  would  deprive  our  criminal 
Courts  of  their  principal  glory  in  the  deep  sense  of 
care,  caution,  and  responsibility  which  was  per- 
vading the  atmosphere  of  every  criminal  Court  in 
the  country  at  the  present  time." 

Many  people  seemed  to  think  that  juries  knowing 
there  was  an  appeal  would  take  less  pains  and  care 
in  their  duties.  But  a  jury  in  a  criminal  case  is  a 
body  of  citizens  called  together  on  a  special  and 
solemn  occasion  to  do  a  serious  duty  and  the  fact 
of  appeal  or  no  appeal  would  have  little  effect  on 
their  conduct.  It  was  the  slackness  of  some  of 
the  judges  rather  than  the  possible  carelessness 
of  juries  that  wanted  looking  to,  especially  in 
Courts  of  country  Quarter  Sessions  where  the 
shorthand  writer  and  the  Court  of  Criminal  Appeal 
were  bound  to  exercise  a  good  influence.  Nothing 
tends  to  good  judicial  work  more  certainly  than 
publicity,  a  shorthand  note,  and  a  strong  Court  of 
Appeal  easily  available. 

Although  the  criminal  law  has  in  the  main  been 
fairly  administered  and  equally  enforced  against  rich 

198 


CRIME   AND   PUNISHMENT 

and  poor  there  are  certain  classes  of  laws  which 
have  often,  no  doubt  from  worthy  motives,  been 
used  as  engines  of  oppression  against  the  poor. 
Of  these  the  Blasphemy  Laws  are  a  standing  ex- 
ample. Dr.  Johnson  tells  us  that  :  "  Laws  are 
formed  by  the  manners  and  exigencies  of  particular 
times  and  it  is  but  accidental  that  they  last  longer 
than  their  causes."  This  is  not  altogether  true. 
The  fact  is  we  have  no  summary  machinery  for 
removing  decayed  and  obsolete  laws  from  the 
Statute  book.  We  want  a  legal  lethal  chamber  for 
these  old  die-hards,  these  laws  against  Sabbath 
Breaking  and  Blasphemy  and  other  old  world 
wickednesses.  A  rich  man  may  break  as  many 
Sabbaths  and  blaspheme  at  his  will  but  he  is  never 
prosecuted  for  it.  In  the  days  of  that  great  and 
good  reformer,  Charles  Bradlaugh,  the  Blasphemy 
Laws  were  made  use  of  to  stifle  the  poor  in  the 
expression  of  their  opinions  in  a  very  shameless 
way.  Only  last  year  a  man  was  imprisoned  under 
them  in  circumstances  which  gave  rise  to  a  good 
deal  of  uneasiness.  He  was  no  doubt  an  ill- 
mannered  and  unpleasant  person,  but  ill  manners 
and  unpleasantness  are  not  crimes,  and  to  make 
use  of  these  old  Blasphemy  Laws,  to  lock  up  the 
poor  blasphemer  only,  is  one  of  those  things  that 
does  extensive  harm  by  giving  the  blasphemer  new 
fuel  for  his  blasphemy,  not  only  against  the  sacred 
things  he  does  not  appreciate,  but  also  against  the 
law  which  he  finds  ready  to  do  injustice  for  the  pro- 
tection of  these  holy  mysteries. 

This  again,  like  many  of  the  things  which  we  may 
199 


THE  LAW  AND  THE   POOR 

reasonably  complain  about  in  what  is,  as  the  world 
goes,  a  humane  criminal  law,  is  one  of  the  matters 
handed  down  by  our  forefathers  which  we  have  not 
had  time  to  set  right.  In  the  old  days  Unitarians 
and  others  were  burned  alive.  Fuller  in  his  Church 
History  says  :  it  was  found  that  "  such  burning 
of  heretics  much  startled  common  people,  pitying 
all  in  pain  and  prone  to  asperse  justice  itself  with 
cruelty  because  of  the  novelty  and  hideousness 
of  this  punishment.  .  .  .  Wherefore  King  James 
politickly  preferred  that  heretics  hereafter,  though 
condemned,  should  silently  and  privately  waste 
themselves  in  prison."  And  that  is  what  all  heretics 
ought  to  do  to-day  if  the  law  were  equally  ad- 
ministered, but  as  a  matter  of  fact  these  laws  are 
only  put  in  force  against  poor,  noisy  people  who 
preach  their  doctrines  in  the  market  place,  and  are  a 
dead  letter  against  those  who  preach  the  same 
doctrines  on  hand-made  paper  bound  in  morocco. 
I  can  quite  believe  that  a  bye-law  to  hinder  one 
man  saying  coarse  and  ill-mannered  things  about 
another  man's  religion  in  open  spaces  might  be  a 
reasonable  police  proposition  ;  but  there  must  be 
free  trade  in  these  things  and  the  Established 
Church  must  not  have  a  preference.  Moreover, 
such  a  law  must  not  be  extended  to  pulpits  or 
printing  presses  or  much  interesting  theological 
polemics  would  be  lost  to  us.  For  the  Blasphemy 
Laws  in  the  twentieth  century,  protecting  only  one 
form  of  religion  and  set  in  motion  only  against  the 
poor,  nothing  can  be  said.  Foul  language  and 
obscenity  can  and  are  punishable  in  other  ways, 

200 


CRIME  AND   PUNISHMENT 

and  the  cause  of  religion  is  poorly  served  by  being 
protected  by  laws  which  are  only  set  in  motion 
when  the  well-to-do  are  annoyed  by  the  vulgarity 
and  ill-manners  of  the  poor. 

There  is  no  gainsaying  that  once  in  the  dock  all 
men  are  equal  or  very  nearly  so,  but  one  may  harbour 
a  suspicion  whether  all  men  have  equal  oppor- 
tunities of  getting  there.  Theoretically,  the  dock, 
like  the  Bench  and  the  Cabinet  and  all  other  British 
institutions,  is  approached  by  an  ever  open  door  ; 
but  in  practice  more  goats  wander  through  the  open- 
ing than  sheep.  Yet  your  sheep  is  a  born  trespasser. 
There  are  some  who  believe  that  his  immunity  from 
punishment  is  due  to  the  wool  on  his  back. 

I  doubt  if  this  is  altogether  true.  Crimes  of 
violence  and  brutality  are  naturally  the  crimes  of 
the  less  fortunate  of  mankind,  and  your  sheep  is 
more  peaceably  disposed  than  your  goat.  But 
when  we  come  to  the  more  modern  crime  of  swind- 
ling we  find  that  the  criminal  law  is  not  very 
successful  in  punishing  the  fraudulent  well-to-do. 
Fraud  is  a  more  complicated  offence  than  larceny, 
and  defrauders  sometimes  get  the  better  of  the  law. 
Cheating  is  not  always  a  crime,  and  successful 
cheating  is  a  question  of  better  education.  That 
is  why  the  rich  so  often  keep  out  of  the 
dock.  The  law  is  somewhat  old  and  decrepit, 
and  the  modern  well-to-do  swindler  is  very  much 
up  to  date.  Therefore  I  fear  it  is  as  true  to-day 
as  it  was  in  the  days  of  Lord  Chief  Justice  Coke,  to 
say  that  the  law  "  maketh  a  net  to  catch  little 
birds  and  letteth  the  great  ones  go." 

201 


THE   LAW  AND   THE   POOR 

If  you  cast  your  eye  down  the  police  news  you 
will  many  times  come  upon  the  case  of  a  low-down 
man  or  woman  who  goes  round  collecting  for  a 
mission  that  does  not  exist,  thereby  cheating  the 
well-disposed  of  a  few  pounds  or  shillings.  It 
is  quite  right  they  should  be  run  in  and  sent  to 
prison.  They  are  pests  stealing  money  that  would 
otherwise  relieve  real  distress. 

But  if  they  had  had  a  little  more  money,  and 
hired  a  house  in  some  remote  place,  and  kept  half-a- 
dozen  real  orphans  there,  and  called  it  The  St. 
Anonymous  Orphanage,  they  might  have  collected 
as  many  thousands  a  year  as  they  liked  for  their 
excellent  charity,  and  no  one  would  have  worried 
them  by  asking  how  the  orphans  were  looked  after, 
nor  would  anyone  have  wanted  to  know  how  much 
was  spent  on  the  orphanage  and  how  much  on  the 
founder  and  his  family,  and  their  houses  and 
carriages  and  furniture  and  upkeep.  The  poor 
orphan  has  many  uses  in  the  world.  One  of  them 
is  to  enable  the  swindler  to  found  orphanages  and 
make  his  living  thereby. 

At  first  blush  the  crime  seems  the  same  as  that 
of  the  house-to-house  cadger  who  gets  six  months, 
but  note  that  the  uneducated  man  has  told  a  lie  and 
made  a  false  pretence  of  an  existing  fact.  The 
good  Founder  of  St.  Anonymous's  never  did  that. 
He  had  an  orphanage  with  real  orphans  in  it. 
True,  there  were  not  very  many  of  them,  and  the 
orphanage  was  rather  a  stuffy,  insanitary  sort  of 
place,  though  photographed  on  end  it  looks  im- 
posing enough.      And  that  is  the  mot  juste,  as  the 

202 


CRIME  AND   PUNISHMENT 

French  have  it  ;    that  is  what  the  orphanage  was, 
and  what  the  good  founder  was — imposing. 

If  you  tell  no  actual  fibs  the  law  does  not  mind 
you  imposing  as  much  as  you  like.  You  may 
transfer  the  savings  of  the  working  class  into  your 
pockets  by  promises  of  the  wildest  character  and 
schemes  of  the  silliest  and  most  romantic  sort,  and 
if  you  do  it  successfully  enough  the  nearest  you  will 
ever  get  to  the  dock  will  be  a  seat  on  the  borough 
bench,  from  which  altitude  you  may  sentence  the 
poor,  mean  criminal  who  never  had  any  capital, 
and  had  no  one  to  advise  him  as  to  the  law  of  false 
pretences.  This  is  not  a  fancy  picture.  There  was 
at  least  one  such  a  magistrate  on  the  bench  once, 
and  for  aught  I  know  there  may  be  some  J.P.'s  to- 
day whose  wealth  has  been  made  by  stealing  the 
savings  of  the  working  classes  within  the  law. 

Certainly  in  this  country  we  have  been  free  from 
the  subordination  of  the  Criminal  Courts  to  the 
power  of  gold  that  is  said  to  exist  in  other  civilised 
places.  Any  preferential  treatment  that  exists  is 
of  a  class  character — snobbish  if  you  will,  but  not 
corrupt.  As  an  Irish  barrister  said  to  me  at  Liver- 
pool— he  was  a  great  Home  Ruler  with  a  grand 
hatred  of  England  and  a  real  affection  for  many 
Englishmen  :  "  My  dear  Parry,  you'll  never  con- 
vince me  that  the  Government  ever  meant  to  hang 
Mrs.  Maybrick.  They're  a  cowardly  lot  of  snobs, 
and  anyhow  they  couldn't  hang  a  woman  they 
might  have  to  meet  out  at  dinner  afterwards." 

And  there  is  undoubtedly  running  through  all  our 
English  institutions,  even  the  administration  of  the 

203 


THE  LAW  AND   THE   POOR 

criminal  law,  a  certain  amount  of  class  snobbery 
which  it  would  be  better  should  be  eliminated. 
Judges  and  magistrates  are,  of  course,  only  human. 
The  wrong  doing  of  a  man  or  woman  of  our  own 
class  naturally  appeals  to  our  bump  of  forgiveness 
more  readily  than  that  of  a  slum  dweller  whose 
temptations  and  environment  we  know  nothing 
about. 

Thus  we  can  remember  cases  where  lady  shop- 
lifters were  discovered  by  eminent  physicians  to  be 
suffering  from  some  extraordinary  form  of  neuras- 
thenia— not  insanity,  of  course — but  one  of  those 
nervous  breakdowns  that  made  an  acquittal  and  a 
rest  cure  in  a  nursing  home  the  only  appropriate 
course.  Magistrates  seem  to  grasp  the  medical 
facts  about  these  well-to-do  unfortunates  almost 
too  readily  ;  but  had  it  been  a  drunken  woman 
snatching  a  pair  of  boots  from  a  shop-nail  in  the 
street  no  eminent  physician  would  have  diagnosed 
her  peculiar  form  of  neurosis.  Even  if  her  husband 
had  tendered  evidence  that  of  late  the  poor  lady 
had  been  strange  in  her  manner,  he  would  scarcely 
have  been  listened  to  with  much  sorrowful  attention. 
The  good  magistrate  would  have  felt  bound  in  the 
interests  of  the  poor  tradesman  to  make  an  example 
of  this  criminal.  Such  cases  are  not  cases  for 
acquittal,  and  the  rest  cure  is  generally  three  months 
hard. 

There  are  certainly  too  many  cases  where  the 
wealth  and  position  of  a  prisoner  leads  to  favoured 
treatment  in  the  Criminal  Courts.  I  am  glad  to 
note  that  these  are  always  pilloried  in  the  Press  and 

204 


CRIME   AND   PUNISHMENT 

publicity  is  given  to  them,  and  in  a  way  nothing 
could  be  better  because  it  is  the  open  door  that  has 
done  so  much  to  keep  our  courts  free  from  the  taint 
of  any  suspicion  of  real  corruption.  I  firmly  believe 
that  when  these  cases  do  occur  they  are  generally 
the  outcome  of  a  spirit  of  humanity  on  the  part  of 
the  presiding  judge  coupled  to  a  certain  extent  by  a 
class  feeling  of  tenderness  on  account  of  the  terrible 
downfall  of  a  man  or  woman  in  his  own  social 
position.  Such  cases,  too,  are  rare.  No  special 
note  is  taken  of  any  case  where  the  law  takes  its 
ordinary  course  and  the  rich  criminal  is  treated  in 
the  same  way  as  his  poorer  brother.  These  are,  of 
course,  the  great  majority,  and  there  are  also  many 
cases  I  am  glad  to  know  where  leniency  and  mercy 
is  extended  to  the  poor  criminal  and  he  is  helped  by 
societies  and  personal  aid  to  regain  his  position 
among  honest  men. 

But  with  all  this  the  poor  man  can  point  to  too 
many  instances  where  rich  hooligans  running  amok 
with  a  motor  car  in  Regent  Street  or  assaulting  the 
police  on  a  racecourse  are  let  off  with  a  fine.  Here 
is  a  curious  case  from  the  London  Sessions  that  is 
bound  to  cause  a  lot  of  talk  in  the  mean  streets.  A 
fashionably  dressed  young  man  was  indicted  in  an 
admittedly  false  name,  and  was  allowed  to  use  it  for 
the  purpose  of  the  proceedings,  and  pleaded  guilty. 
He  had  obtained  a  sable  stole,  value  £40,  from  a 
costumier  in  Shaftesbury  Avenue  by  false  pretences. 
He  had  opened  an  account  at  Oxford.  He  received 
a  cheque  book  and  then  withdrew  his  money  and 
closed  the  account.     He  used  to  obtain  goods  which 

205 


THE   LAW  AND  THE   POOR 

he  paid  for  with  cheques  on  the  Oxford  Bank,  and 
cheques  to  the  amount  of  £5,241  6s.  3d.  had  been 
returned  marked  "  no  account."  A  detective  said 
he  was  a  young  man  leading  a  fast  life.  The  city 
police  had  a  warrant  for  him  for  obtaining  a  ring 
value  £145  and  a  gold  watch  £15.  These  articles  it 
is  true  were  returned.  The  Oxford  police  had  a 
warrant  out  for  him  and  when  arrested  he  was 
attempting  to  obtain  a  valuable  fur  article  in  Dover 
Street.  His  counsel  urged  that  his  parents  were 
people  of  respectability  and  integrity  who  had 
suffered  losses,  and  the  young  gentleman  was 
trying  to  keep  things  going  in  the  same  style  he  had 
been  accustomed  to,  and  had  come  under  bad 
influences.  That  is  the  whole  story,  and  the  report 
ends,  "  the  defendant  was  bound  over,  the  magis- 
trate remarking  that  there  was  no  need  to  cause 
his  relatives  to  suffer  by  mentioning  his  name." 

How  many  poor  men  and  women  whose  children 
have  been  taken  away  from  them  for  long  terms  of 
years  to  a  reformatory  or  sent  to  gaol  for  months 
with  hard  labour,  to  the  knowledge  of  all  their 
neighbours,  will  read  that  report,  and  what  will  they 
think  and  say  of  the  justice  of  our  criminal  law  ? 
One  pities  the  parents  and  relatives  of  this  particular 
young  criminal  waster  as  one  pities  the  parents  of 
all  children  and  the  children  of  all  parents  when  one 
or  the  other  bring  disgrace  or  ignominy  on  the  home 
—but  why  is  this  one  particularly  undesirable 
swindler  to  be  allowed  the  privilege  of  an  alias  in 
an  indictment,  and  why  is  his  name  alone  among  all 
the  prisoners  arraigned  at  the  Sessions  to  be  kept 

206 


CRIME   AND   PUNISHMENT 

from  the  world  ?  And  how  hard  it  will  be  on  some 
youngster  of  like  criminal  tendencies  when  he 
comes  before  a  court  where  harsher  methods  prevail, 
and  he  finds  that  not  only  is  his  name  brutally 
noised  abroad,  but  offences  of  this  character  are 
deemed  worthy  of  imprisonment. 

One  would  not  wish  to  say  a  word  against  leniency 
to  the  young  however  much  it  may  savour  of  class- 
tenderness,  but  the  concealment  of  a  criminal's 
name  on  his  trial  because  his  parents  are  well-to-do 
and  respectable,  is  just  one  of  those  things  that  the 
poor  people  treasure  up  and  quote  as  an  instance  of 
the  law's  unfairness.  At  a  time  when  every  effort 
should  be  made  to  impress  on  the  poor  the  impar- 
tiality of  the  law  little  cases  of  this  kind,  arising  no 
doubt  from  motives  of  kindness  and  humanity,  are 
exaggerated  and  quoted  as  typical  of  our  criminal 
administration — which  assuredly  they  are  not. 

In  cases  where  the  whole  of  the  resources  of  the 
State  are  against  the  prisoner  fair  play  demands 
that  everything  that  can  be  done  for  him  without 
detriment  to  the  demands  of  justice  should  be  done. 
In  a  case  of  murder  which  created  a  great  sensation 
this  year,  the  whole  evidence  turned  on  identity. 
Several  witnesses  came  to  the  police  and  said  they 
had  seen  the  victim,  a  child,  in  company  of  the 
prisoner.  Other  witnesses  had  stated  to  the  police 
that  they  had  seen  the  victim  in  company  with  a 
woman.  During  the  examination  of  the  police 
inspector  in  charge  of  the  case  he  was  asked  by  the 
defence  for  these  statements,  the  magistrate  ex- 
pressed his  opinion  that  they  should  be  shown  to 

207 


THE  LAW  AND  THE  POOR 

the  solicitor  for  the  defence,  but  the  counsel  for  the 
Crown,  a  gentleman  of  very  wide  experience,  "  sug- 
gested that  the  proper  thing  for  the  solicitor  for 
the  defence  to  do  would  be  to  go  and  see  the  people." 
I  do  not  for  a  moment  say  that  the  learned  counsel 
was  inaccurate  in  his  statement  of  a  legal  proposition. 
It  may  be  that  such  is  the  law ;  but  if  it  is  what  does 
it  mean  ?  The  police  have  honest  statements  of 
citizens  in  their  hands  suggesting  that  a  man  has 
committed  murder,  they  have  equally  honest  state- 
ments from  other  witnesses  that  the  murder  has 
been  committed  by  a  woman.  However  mistaken 
they  may  believe  the  latter  statements  to  be,  surely 
fair  play  demands  that  the  prisoner  should  have 
access  to  these  statements  for  what  they  are  worth. 
After  all  he  is  at  present  to  be  deemed  an  innocent 
man,  he  is  not  even  committed  for  trial,  and  he  is  a 
citizen  with  as  much  right  to  the  protection  of  the 
police  as  any  other.  If  they  have  statements 
going  to  prove  his  innocence  he  ought  to  have  access 
to  them  and  be  told  who  has  made  them  so  that  he 
and  his  solicitor  can  see  how  far  they  help  to  prove 
his  case.  But  no,  that  is  not  the  official  view. 
Counsel  for  the  Crown  no  doubt  states  it  correctly. 
The  proper  thing  is  for  the  solicitor  for  the  defence 
to  go  about  at  the  expense  of  the  poor  man  he  is 
defending  and  find  these  people  out  and  take 
statements  afresh.  It  is  a  denial  of  justice,  the 
man  has  not  the  money  to  do  it,  his  solicitor  is  not 
a  charitable  institution,  and  even  if  he  were  he 
probably  has  not  money  and  staff  for  such  work. 
In  this  particular  case  the  whole  of  the  police  had 

208 


CRIME  AND   PUNISHMENT 

scoured  London  for  evidence  to  clear  up  the  mystery. 
Surely  when  a  citizen  was  charged  with  the  offence 
public  interest  demands  that  the  matter  that  has 
been  discovered  that  goes  to  prove  innocence  should 
be  as  readily  available  as  matter  that  goes  to  prove 
guilt.  The  present  practice  is  to  my  mind  a  tradition, 
handed  down  from  the  bad  old  days,  that  needs  to 
be  swept  away.  We  ought  to  free  our  criminal  law 
from  any  shred  of  suggestion  that  the  State  is  out 
to  obtain  a  conviction  rather  than  an  acquittal. 
The  State  is  only  interested  in  the  truth  and  justice 
of  the  verdict,  and  a  true  verdict  obtained  by  methods 
of  injustice  is  a  crime  against  the  community. 

Much  might  be  said  on  the  inequality  of  punish- 
ments. The  question  of  the  advisability  of  corporal 
punishment  is  one  upon  which  people  hold  strong 
and  conflicting  opinions.  I  am  not  a  sentimentalist 
on  this  subject.  I  am  told  by  some  quite  sane  and 
scientific  thinkers  that  for  men,  women  and  children 
of  the  hooligan  class  who  have  a  mania  for  violence 
and  destruction  it  is  probably  the  most  appropriate 
form  of  punishment.  Its  good  qualities  are  that 
it  is  cheap ;  it  is  soon  over,  but  irksome  whilst  it 
lasts  ;  and  it  is  said  to  appeal  to  the  homeopathic 
instincts  of  the  hooligan  class  who  recognise  the 
justice  of  meeting  violence  by  violence. 

Against  these  positive  merits  it  is  very  unequal  in 
its  incidence ;  one  victim  will  suffer  more  than 
others  over  the  same  punishment  ;  and  it  is  brutalis- 
ing,  in  some  measure,  to  the  flogger  and  floggee.  Too 
much  may  be  made  of  this  last  argument,  for  nothing 
can  be  more  brutalising  and  deadening  to  all  hopeful 

l.p.  209  P 


THE   LAW  AND  THE   POOR 

and  better  instincts  than  long  terms  of  imprison- 
ment. 

On  the  whole,  my  instinct  is  against  flogging, 
because  I  am  an  optimist  and  believe  that  though 
it  has  had  its  uses  in  the  past  as  an  educative  in- 
fluence we  have  come  to  a  state  of  civilisation  when 
we  should  abolish  if  possible  all  violent  or  cruel 
punishments.  There  was  a  lot  perhaps  to  be  said 
for  thumbscrews  in  their  day,  but  that  day  is 
admittedly  over.  My  grumble  about  the  cat-of- 
nine-tails  and  the  birch  is  not  so  much  that  the  law 
should  put  them  in  the  cupboard  once  and  for  ever, 
but  that  if  they  are  to  be  used  at  all,  their  lashes 
should,  like  God's  good  rain,  descend  on  rich  and 
poor  alike. 

Take  the  crimes  for  which  flogging  is  permissible 
punishment  to-day.  For  adults  there  is  garrotting, 
offences  under  the  Criminal  Law  Amendment  Act, 
procuring,  etc.,  and  being  an  incorrigible  rogue. 
For  lads  under  sixteen,  stealing  and  malicious 
damage. 

Now  the  first  objection  to  these  punishments  is 
that  whether  flogging  is  or  is  not  to  be  administered 
depends  altogether  on  the  taste  and  fancy  of  the 
presiding  Judge.  Some  think  it  is  an  advisable 
form  of  punishment ;  others  view  it  with  disfavour. 
This  element  of  human  lottery  in  the  administration 
of  the  law  should  surely  be  kept  under  as  far  as 
possible.  Out  of  a  hundred  and  forty-five  criminals 
convicted  of  robbery  only  three  were  flogged.  An 
intending  robber  therefore  who  studies  judicial 
"  form  "  in  the  statistics  will  see  that  it  is  about 

2T0 


CRIME   AND   PUNISHMENT 

fifty  to  one  against  the  cat,  and  if  he  is  the  one  un- 
fortunate surely  he  has  a  distinct  grievance  aga'nst 
the  forty-nine  lucky  blackguards  who  escape. 

When  only  three  criminals  receive  this  punishment 
in  one  year  it  is  worth  while  considering  whether 
it  should  be  continued,  or,  if  it  is  to  be  continued, 
whether  it  should  not  be  extended  to  crimes  against 
women  and  children  and  other  nameless  horrors. 
Highway  robbers  to-day  are  all  of  the  lowest  and 
the  poorest,  but  in  the  other  category  of  crime  there 
are  sometimes  men  of  means  who  find  their  way  into 
the  dock. 

If  it  ever  comes  to  be  recognised,  as  Butler  in  his 
beautifully  prophetic  account  of  the  land  of  Erewhon 
would  have  us  believe,  that  crime  is  a  disease  and 
should  be  treated  by  a  family  Straightener,  as  we 
now  call  in  the  doctor,  then  all  doubts  as  to  corporal 
punishment  will  disappear.  The  Erewhonians  when 
they  had  lapsed  from  the  path  of  honesty  took,  under 
their  doctor's  advice,  a  flogging  once  a  week  and  a 
diet  of  bread  and  water  for  three  months  on  end 
with  the  same  heroism  and  resignation  with  which 
we  undergo  a  cure  at  Harrogate  after  a  London 
season.  Once  recognise  that  the  birch  rod  is  a  cure 
for  dishonesty,  violence,  and  malicious  injury  to 
property,  then  all  sensible  men  and  women  afflicted 
with  these  tendencies  would  welcome  the  cure  and 
visit  their  Straightener  as  they  now  visit  their 
dentist. 

But  at  present  we  are  far  from  the  realisation  of 
these  sane,  clear-sighted  dreams.  Flogging,  as  the 
law  uses  it  as  a  punishment  to-day,  is  not  used,  I  fear, 

211  V  i 


THE  LAW  AND  THE  POOR 

merely  as  a  remedy  or  even  a  deterrent  but  rather  by 
way  of  revenge.  It  is  almost  wholly  used  against  the 
very  poor  and  degraded.  Even  under  the  White 
Slave  Act,  I  cannot  remember  any  case  in  which  it 
has  been  used  against  a  well-to-do  man.  In  any 
case  it  is  only  available  against  the  actual  procurer 
and  not  against  the  landlords,  ground  landlords, 
restaurant  proprietors,  and  dressmakers,  who  know- 
ingly share  in  the  woman's  earnings  and  live  on 
them. 

Flogging  may,  or  may  not,  be  an  advisable  form 
of  punishment,  but  if  it  is  to  be  used,  let  it  be 
administered  automatically  and  without  fear  or 
favour  to  all  beasts  and  blackmailers  and  hooligans, 
be  they  rich  or  poor.  At  present  the  chances  of  a 
rich  man  being  flogged  for  his  wickedness  on  earth 
are  about  the  same  as  those  of  the  camel  with  an 
ambition  to  loop  the  needle. 


212 


CHAPTER    XI 

THE  POLICE  COURT 

Squcezum.  The  laws  are  turnpikes,  only  made  to  stop  people 
who  walk  on  foot  and  not  to  interrupt  those  who  drive  through 
them  in  their  coaches. 

Fielding  :   "  The  Coffee-house  Politician." 
Act  II.,  Scene  II. 

When  Fielding  was  made  a  magistrate  for  the 
county  of  Middlesex  in  1748  the  popular  notion  of 
the  office  was  expressed  in  the  nickname,  "  The 
trading  justice."  He  was  paid  by  fees  and  had  a 
direct  interest  in  the  prosperity  of  crime.  The  fees, 
moreover,  were  very  small,  and  it  was  a  recognised 
thing  that  he  should  make  his  office  a  lucrative  one 
by  methods  exemplified  by  Mr.  Justice  Squeezum  in 
Fielding's  farce.  Although  the  great  writer  fulfilled 
the  duties  of  his  office  with  honour,  fidelity,  and  zeal, 
he  has  left  us  in  no  doubt  about  the  immorality  and 
ignorance  of  many  of  his  fellow  justices.  It  is  a 
relief  to  turn  from  the  justice  room  in  Bow  Street 
in  the  eighteenth  century  with  its  rogues  and 
vagabonds  on  their  way  to  the  whipping  posts  of 
the  Bridewell,  and  its  highwaymen  and  thieves 
starting  for  Tyburn  by  way  of  Newgate,  and  to  look 
on  the  comparatively  civilised  picture  of  a  metro- 
politan police  court  of  to-day. 

213 


THE   LAW  AND  THE  POOR 

A  century  and  a  half  has  worked  wonderful 
reforms  for  us  in  the  world  of  police  and  police 
courts,  but  one  cannot  honestly  say  that  nothing 
remains  to  be  done.  Direct  bribery  is  no  doubt 
abolished,  justice  is  fearlessly  administered,  but 
there  are  still  traditional  methods  of  imposing  fines 
and  imprisonment  which  cause  the  poor  to  think 
that  carriage  folk  go  more  easily  along  the  turnpikes 
of  the  law  than  those  humble  ones  who  travel 
perforce  on  foot. 

I  am  not  writing  of  the  police  court  as  the  ante- 
chamber of  the  Old  Bailey.  In  relation  to  the  grave 
crimes  against  society  we  may  fairly  boast  that  rich 
and  poor  are  treated  much  alike.  But  the  police 
court  in  matters  within  its  own  jurisdiction  is  a 
machine  for  teaching  better  manners  to  the  poor. 
It  is  a  somewhat  harsh  machine,  perhaps,  but  in  the 
main  just  and  necessary  at  the  present  state  of  our 
evolution. 

When  folk  are  naughty  and  violent  and  ill- 
mannered  and  ultra-selfish,  and  become  a  nuisance 
to  their  neighbours,  the  police,  if  they  are  poor,  take 
them  in  hand,  but  if  they  are  rich  they  are  dealt 
with  differently.  Unless  they  are  so  extravagantly 
and  absurdly  naughty  as  to  become  a  public  as 
opposed  to  a  private  nuisance,  there  is  no  necessity 
for  the  police  to  tackle  the  rich.  When  two  "  lydies" 
go  for  each  other  in  the  gutters  of  Whitechapel  the 
police  step  in,  but  when  the  same  thing  happens  in 
Mayfair,  society — with  a  big  S — maintains  its  own 
discipline. 

The  reason  why  rich  folk  are  not  so  outwardly 

214 


THE   POLICE   COURT 

naughty  as  poor  folk  is  very  much  a  matter  of 
education  and  environment.  As  Lord  Haldane  in 
his  valuable  speech  in  America  explained  to  us, 
there  is  a  "  system  of  habitual  or  customary 
conduct,  ethical  rather  than  legal,  which  embraces 
all  those  obligations  of  the  citizen  which  it  is  '  bad 
form  '  or  '  not  the  thing  '  to  disregard." 

Thus  in  the  days  of  Sir  Anthony  Absolute  it  was 
"  bad  form  "  not  to  get  drunk  after  dinner,  and  it 
was  "  not  the  thing  "  to  refuse  to  fight  a  duel. 
These  laws  of  conduct  were  not  enforceable  before 
magistrates,  but  they  were  laws  all  the  same,  and 
rich  people  dared  not  disobey  them  for  fear  of  being 
"  cut  "  by  society. 

And  as  the  years  roll  on  better  education,  better 
housing,  better  wages,  and  less  of  that  repressive 
Sabbatarianism  that  drive?  the  poorer  youngsters 
into  natural  mischief  will  make  the  police  court  less 
and  less  necessary  as  a  school  of  manners.  The 
conscience  and  good  manners  of  all  classes  attain  a 
higher  ideal  every  day,  and  the  only  reason  the  rich 
arrive  at  a  better  standard  of  outward  manners  than 
the  generality  of  the  poor  is  that  they  have  been 
caught  young  and  made  to  practise  at  it  for  genera- 
tions. It  is  not  a  matter  entitling  them  to  praise, 
but  we  are  out  to  set  down  and  discuss  facts,  and 
undoubtedly  it  is  so. 

For  instance,  you  would  expect  an  Eton  boy  to 
play  better  cricket  than  a  St.  Andrews  caddie,  but 
the  caddie  would  probably  beat  the  other's  head 
off  at  golf.  It  is  environment  that  does  it,  and  the 
lesson  to  be  learned  is  to  improve  in  every  way  the 

215 


THE   LAW  AND  THE   POOR 

material  surroundings  of  the  poor  to  the  utmost  of 
our  ability.  Meanwhile  the  police  court  seems  to 
me  as  necessary  a  part  of  our  equipment  as  a  sewage 
works  or  an  ashpit. 

Crime  is  not  only  a  matter  of  heredity  and  educa- 
tion, it  is  also  a  question  of  geography.  This 
geographical  distribution  of  crime  is  an  intensely 
interesting  subject.  You  will  find  that  Cardigan, 
for  instance,  is  the  whitest  county  in  England  and 
Wales  for  crimes  of  all  kind,  whether  against 
property,  morals,  or  of  a  violent  character.  Gla- 
morgan, on  the  other  hand,  is  only  beaten  by 
Monmouth  in  records  of  crimes  against  property  ', 
in  crimes  of  violence  Glamorgan  is  easily  first ;  in 
crimes  against  morality  Glamorgan  again  is  only 
beaten  by  Dorset,  Berks,  Lincoln  and  Huntingdon, 
the  latter  taking  the  1905-09  record  very  comfortably. 
Monmouth,  happily,  in  this  latter  class  of  crime  is 
in  a  far  better  case  than  her  neighbour. 

If  you  can  trace  the  history  and  causes  of  different 
crimes  in  different  districts  I  believe  you  may  hope 
to  sterilise  a  county  of  certain  crimes  by  moral 
sanitation  and  stamp  them  out  just  as  we  have  rid 
counties  of  typhus  and  the  plague.  In  dealing 
with  uncivilised  crimes  of  mischief  and  destruction 
we  should  always  bear  in  mind  that  the  poor  who  do 
these  acts  are  very  often  only  human  beings  who 
have  not  been  cultivated  up  to  modern  standards. 
Some  crimes  are  traditional  in  certain  districts, 
and  the  imitative  faculty  being  strong  in  criminals, 
heredity  and  mimicry  work  together  to  cause  a 
certain  historicity  in  crime. 

216 


THE   POLICE   COURT 

Magistrates  and  others  do  not  sufficiently  study 
this.  Patriotic  county  officials  loudly  deny  what 
everyone  who  reads  the  Judicial  Statistics  knows 
to  be  true.  In  discussing  the  Edalji  case  I  pointed 
out  that  to  anyone  who  studied  the  history  of  crime 
it  was  far  more  likely  that  such  crime  would  be 
committed  by  a  native  of  the  county  than  by  a 
gentleman  of  Parsee  descent.  This  seemed  to 
annoy  some  ardent  Staffordshire  folk,  but  there  is 
no  reason  why  it  should.  Killing  and  maiming  the 
cattle  of  others  is  a  very  ancient  pursuit  and  has 
only  recently  been  regarded  as  criminal.  The 
wicked  man  in  the  Bible  was  often  threatened  with 
the  destruction  of  his  cattle.  No  doubt  the  righteous 
man  was  encouraged  thereby  to  take  upon  himself 
the  duty  of  avenging  his  wrongs  by  destroying  his 
wicked  neighbour's  cattle,  and  the  wicked  neighbour, 
believing  himself  to  be  the  righteous  one,  retaliated 
in  kind.  Certain  it  is  that  in  border  countries  we 
always  read  of  cattle  raiding  and  killing  and  maim- 
ing, and  perhaps  one  reason  why  Staffordshire 
is  old  fashioned  in  the  cattle-maiming  business  is 
that  it  was  a  border  country,  and  in  the  good  old 
days  the  lords  and  squires  raided  cattle  and  destroyed 
their  neighbour's  farms  and  boundaries,  and  these 
antiquated  habits  remain  with  some  as  natural 
instincts  of  revenge. 

In  early  days  such  acts  were  not  considered 
criminal.  The  only  malicious  injury  to  property 
known  to  the  English  common  law  as  a  crime  was 
arson.  It  was  not  until  the  time  of  Henry  VIII. 
(37    Hen.    VIII.,  c.  6)  that  it  was  discovered  that 

217 


THE   LAW  AND   THE   POOR 

there  were  "  divers  sundry  malicious  and  curious 
persons,  being  men  of  evil  and  perverse  disposition 
and  seduced  by  the  instigation  of  the  devil,  who,  to 
damnify  the  king's  true  subjects  went  about  burning 
frames  of  timber  ready  to  be  set  up  and  edified  for 
houses,"  and  broke  down  dams  and  moats  or  cut 
away  lead  pipes,  or  barked  apple  trees,  or  cut  out 
beasts'  tongues,  which  seems  a  very  ancient  and 
horrible  form  of  maiming  cattle.  The  penalty  for 
these  latter  offences  was  the  inadequate  fine  of 
ten  pounds. 

In  1722  came  the  Black  Act  which  made  it  felony 
without  benefit  of  clergy  to  "  unlawfully  or  mali- 
ciously kill,  maim,  or  wound  any  cattle."  In  1861 
a  Malicious  Damage  Act  (24  &  25  Vict.  c.  97)  was 
passed,  codifying  all  the  law  relating  to  such 
offences,  and  that  is  the  Act  under  which  Mr. 
Edalji  was  indicted. 

I  have  worked  out  the  geographical  statistics  of 
cattle  maiming  in  England  for  forty  years,  from 
1861  to  1900,  and  they  are  extremely  interesting. 
In  the  first  place  it  is  well  to  know  that  the  total 
number  of  such  crimes  is  rapidly  decreasing.  In 
five  years,  from  1865  there  were  over  a  hundred 
cases ;  in  five  years  prior  to  1900  there  were 
less  than  fifty.  The  counties,  which  total  more 
than  twenty  cases  each,  are  York,  Sussex, 
Middlesex,  Lincoln,  Lancashire  and  Staffordshire. 
Somerset  and  Gloucester  have  nineteen  cases,  but 
Gloucester  has  only  one  case  since  1882  and  Somerset 
only  six  cases  since  1870.  Surrey  has  only  eleven 
cases,   and  only  five   occur  since   1870.     Anglesey 

218 


THE   POLICE   COURT 

and  Westmoreland  have  only  one  such  charge  each 
during  the  whole  forty  years.  In  the  case  of 
Staffordshire,  in  the  twenty- two  cases  taking  place 
from  1861  to  1900  fifteen  cases  had  taken  place 
since  1877,  and  there  is  never  a  clear  five  years  in 
the  period  without  a  case. 

In  1903,  when  the  Wyrley  outrages  took  place,  it 
seems  to  me  that  a  county  with  this  history  would 
have  been  sensible  to  look  at  home  for  the  criminal. 
In  counties  such  as  Somerset  and  Surrey,  where  the 
offence  seemed  then  to  be  dying  out,  the  same  con- 
siderations would  not  apply.  Whereas  in  West- 
moreland or  Anglesey  the  expectation  would  be  that 
the  crime  was  committed  by  a  stranger.  I  do  not 
think  it  would  be  wise  to  press  these  speculations 
too  far,  but  at  the  same  time  I  think  magistrates 
and  police  might  make  greater  use  of  the  wonderful 
statistics  that  are  collected  and  published  by  the 
State  at  such  great  expense  and  learn  useful  lessons 
from  them  in  their  daily  business. 

Whilst  we  condemn  the  horrible  savagery  of  such 
crimes  it  is  only  fair  to  remember  that  the  law  does 
not  punish  them  for  their  cruelty,  but  only  for  their 
injury  to  property.  Prevention  of  cruelty  to 
animals  is  a  far  more  modern  branch  of  law,  the 
beginning  of  which  dates  from  1822.  When  Lord 
Erskine  moved  his  Bill  against  Cruelty  to  Animals 
in  1811,  so  absurdly  sentimental  did  it  seem  to  the 
assembled  peers  that  they  drowned  his  speech  in  a 
chorus  of  cat-calls  and  cock-crowing.  It  is  well  to 
remember  when  measuring  punishment  in  the  police 
courts  that  there  are  individuals  and  classes  existing 

219 


THE   LAW   AND   THE   POOR 

to-day  that  are  scarcely  more  civilised  than  the 
lords  and  barons  of  a  hundred  years  ago. 

The  feudal  lords  and  their  henchmen  did  many 
things  in  the  good  old  days  in  their  quarrels  with 
their  neighbours  which  to-day  would  bring  them 
before  the  justices.  They  wounded  with  intent, 
they  did  grievous  bodily  harm  to  anyone  who  annoyed 
them,  and  they  did  as  much  malicious  damage  to 
property  as  seemed  in  their  own  eyes  a  fair  set  off 
for  insults  had  and  received.  Among  a  certain 
small  degraded  class  in  our  own  country  these 
traditional  pleasantries  of  the  country-side  are  not 
fully  recognised  to  be  crimes.  There  are  a  set  of 
men  among  whom  it  is  not  "  bad  form  "  to  commit 
these  acts.  This  form  of  atavism  requires  not  only 
pity  but  further  and  better  repression  at  the  hands 
of  capable  police. 

As  long,  therefore,  as  we  have  these  hereditary 
tendencies  to  crimes  of  violence  and  selfishness,  the 
police  court  seems  to  me  to  meet  a  felt  want.  I 
can  imagine  a  better  world  without  any  police  court, 
just  as  I  can  imagine  this  world  with  a  better  police 
court. 

But  I  should  like  to  see  imprisonment  kept 
entirely  for  evil-doers,  and  that  side  of  the  police 
court  work  which  consists  in  rate  collecting  and  semi- 
civil  proceedings  transferred  elsewhere.  At  present 
many  are  sent  to  gaol  in  the  police  court  for  the 
crime  of  poverty.  In  the  cases  of  non-payment  of 
rates  or  of  orders  on  parents  to  pay  subscriptions 
to  industrial  homes  it  seems  a  very  bad  policy  to 
send  a  poor  man  to  prison.     It  takes  a  man  from 

220 


THE   POLICE   COURT 

work,  it  does  not  produce  money,  and  it  throws  a 
family  into  the  workhouse. 

In  these  cases  there  is  no  pretence  of  proving  a 
man's  means  and  sending  him  to  gaol  because  he 
can  pay  and  won't.  No  such  evidence  is  necessary. 
The  man  goes  to  prison  because  he  is  poor  and  has 
not  the  money  to  pay.  If  the  State  thinks  fit  to 
put  a  man's  child  in  a  reformatory,  one  would  think 
it  might  stand  the  expense  of  it,  without  ruining  the 
home  by  imprisoning  the  father  because  he  cannot 
subscribe  towards  his  keep. 

With  regard  to  orders  for  maintaining  a  separated 
wife,  or  affiliation  orders,  everyone  would  have  less 
sympathy  with  the  man  who  is  sent  to  prison  for 
not  paying  these.  But  if  a  man  has  not  the  money 
he  does  not  make  any  in  prison,  and  what  these  poor 
women  want  is  regular  weekly  money. 

These  are  special  cases  in  which  I  think  power 
to  attach  a  man's  wages  up  to  a  certain  percentage 
would  be  a  just  and  reasonable  proposition.  Such 
a  law  might  be  unpopular  with  mankind,  but  it 
seems  fair  to  the  women.  Whether  it  would  tend 
to  increase  or  decrease  maintenance  and  bastardy 
orders  I  have  not  the  least  idea. 

"  Five  shillings  and  costs  or  seven  days."  This 
familiar  phrase,  as  Count  Smorltork  says,  "  surprises 
by  himself  "  the  whole  philosophy  of  police  courts. 
Nothing  is  more  marked  in  the  treatment  of  rich 
and  poor  in  the  police  court  than  the  unfair  incidence 
of  fines.  Take,  for  instance,  the  common  case  of  a 
motor-car  driver  being  fined  forty  shillings  and  costs 
for  exceeding  the  speed  limit  and  driving  to  the 

221 


THE   LAW  AND  THE   POOR 

danger  of  mankind.  If  his  master  is  a  Cabinet 
Minister,  say,  he  writes  a  civil  letter  to  the  clerk 
to  the  magistrates  expressing  his  regret  and  enclos- 
ing the  needful,  which  is  just  two  five-thousandths 
of  his  official  income. 

But  supposing  he  is  a  taxi-cab  driver  who  owns 
his  cab,  or  is  buying  it  on  the  hire  system,  as  many 
do.  He,  too,  is  fined  forty  shillings  and  costs,  and 
as  he  earns,  let  us  say,  forty  shillings  a  week,  he  has 
to  pay  one  fifty-second  of  his  income. 

If  he  cannot  raise  the  money  his  home  is  distrained 
on,  or  there  is  the  option  of  imprisonment.  That 
kind  of  option  never  worries  the  Cabinet  Minister 
or  the  chauffeur  thereof.  In  the  old  tithe  days  the 
parson  took  his  tenth  from  rich  and  poor  alike, 
and  was  no  respecter  of  persons  ;  all  he  wanted 
was  one-tenth  of  your  income  in  cash.  As  between 
Cabinet  Minister  and  cabman  the  relation  of  fine 
should  be  as  two  pounds  to  ninepence — that  is  to 
say,  if  the  law  in  the  police  courts  desires  to  treat 
rich  and  poor  alike. 

There  is  no  difficulty  about  doing  this.  All  that 
is  wanted  is  to  enact  in  your  statute  that  the  fine 
should  "  not  exceed  one-fiftieth  or  one  one-thou- 
sandth of  a  man's  income."  Then  all  would  be 
fined  off  the  same  mark.  At  present  the  poor  man 
is  the  scratch  man,  and  the  greater  the  wealth  the 
longer  the  handicap. 

As  to  costs,  they  should  be  wholly  abolished. 
They  are  not  only  an  odious  tax  on  the  poor,  but 
they  give  the  officials  of  the  court' an  unholy  incen- 
tive to  make  the  court  a  paying  concern,  and,  what 

222 


THE   POLICE   COURT 

is  worse,  give  every  clerk  and  officer  in  the  police 
court  a  direct  pecuniary  interest  in  convictions.  As 
things  stand  to-day  a  council  of  city  men  are  not 
likely  to  advance  salaries  where  their  police  court  is 
losing  money.  A  godly  and  righteous  police  court 
should  glory  in  losing  money  year  by  year. 

And  whilst  I  recognise  that  at  the  head  of  each 
police  court  there  should  be  a  stipendiary  to  deal 
with  the  more  important  cases,  and  always  to  be 
within  call  when  there  are  cases  to  try  in  which  the 
local  magistrates  have  a  class  interest,  yet  I  have 
no  desire  to  abolish  Dogberry,  nor  do  I  take 
any  pleasure  in  reading  that  he  has  written 
himself  down  an  ass.  In  our  chief  cities  there  are 
now  excellent  stipendiaries  and  magistrates  of  all 
classes,  including  representatives  of  working  men, 
and  all  can  testify  how — taking  the  police  court 
system  as  it  stands — it  is  worked  fairly  and  carefully 
and  to  the  advantage  of  all. 

But  these  places  are  far  ahead  of  the  county 
towns  and  districts  where  the  squire  and  parson 
reign  supreme,  and  the  clerk  to  the  justices  is  their 
own  faithful  attorney.  I  believe  thoroughly  that 
these  men  do  their  best,  but  it  is  quite  impossible 
that  they  can  take  a  normal  view  of  such  horrible 
crimes  as  the  rape  of  a  pheasant's  egg  or  the  snaring 
of  a  hare.  It  is  from  the  beautiful  little  corners 
of  the  lovely  English  country  that  the  bitter  cry  of 
injustice  in  the  police  courts  makes  itself  heard  from 
time  to  time  in  the  public  Press.  Why  should  not 
every  hamlet  have  its  Village  Plowden  to  brighten 
life  on  the  country  side  ? 

223 


THE   LAW  AND   THE   POOR 

There  we  see,  let  us  hope,  the  last  of  a  decaying 
and  rotten  system — justice  administered  by  a  class 
unlearned  in  law,  and  unlearned  in  a  far  more 
important  branch  of  their  business — the  knowledge 
of  the  works  and  days  and  temptations  of  the  fellow 
sinners  whose  judges  they  have  elected  themselves 
to  be.  In  the  remote  country  places  more  than 
anywhere  is  the  stipendiary  a  necessity.  Mean- 
while, why  should  not  direct  representatives  of  the 
agricultural  labourer  be  placed  upon  the  bench  if  we 
are  not  to  abolish  Dogberry  altogether  ? 

While  these  words  are  being  written,  an  effort  is 
being  made  with  a  Criminal  Administration  Bill  to 
do  away  with  some  of  the  abuses  of  the  police  court. 
The  imprisonment  of  people  for  non-payment  of 
fines  is  really  imprisonment  for  poverty,  and  the 
scandal  of  it  is  at  last  officially  recognised  and  the 
necessity  of  reform  admitted.  That,  at  all  events, 
is  to  the  good,  though  it  is  to  be  hoped  that  if  the 
Bill  at  present  put  forward  is  to  pass  it  will  be 
widely  extended  and  simplified. 

It  is  quite  a  good  thing  to  enact  that  it  shall  be 
obligatory  upon  magistrates  to  grant  time  for  the 
payment  of  fines,  but  seeing  that  the  magistrates 
have  always  had  this  power  and  never  used  it  to  any 
useful  extent  it  would  be  well  that  there  should  be 
less  discretion  about  the  matter.  Law  for  lay 
magistrates  should  be  automatic  and  fool-proof. 
When  you  enact  that  a  magistrate  is  obliged  to 
allow  time  for  payment  of  fines,  "  unless  the  Court 
for  any  other  special  reason  expressly  directs  that  no 
time  shall  be  allowed,"  you  are  surely  inviting  the 

224 


THE   POLICE   COURT 

average  justice  to  supply  himself  with  special 
reasons  why  he  should  not  carry  out  a  law  which 
you  know  by  his  past  history  he  dislikes.  It  must 
not  be  forgotten  that  in  Manchester,  although  the 
fees  legally  allowed  for  a  summons  are  twelve 
shillings,  the  practice  has  been  for  fees  not  to 
exceed  the  fine.  Imprisonment  for  less  than  five 
days — which  in  the  future  is  not  to  be  permitted — 
has  for  a  long  time  not  been  allowed  by  the  practice 
of  the  Manchester  justices.  Where  justices  desire 
to  be  lenient  and  enforce  the  law  temperately  they 
can  do  so  to-day,  and  therefore  it  is  clearly  no  use 
in  a  new  statute  to  leave  a  discretion  to  those  who 
will  certainly  abide  by  old  and  evil  customs  unless 
they  are  forced  to  do  otherwise. 

The  statistics  of  the  police  courts  show  that  in  one 
year  92,000  citizens  were  imprisoned  in  default  of 
the  payment  of  a  fine  and  80,000  imprisoned  without 
the  option.  The  number  of  persons  sentenced  to 
pay  fines  is  no  less  than  460,000.  Every  year  new 
statutes  are  passed  making  new  offences  which  can 
be  committed  with  practical  impunity  by  those 
whose  purses  are  long  enough.  Under  the  heading 
Betting  and  Gaming,  3,346  persons  were  fined  and 
only  y$S  went  to  prison.  Under  the  heading 
Motor  Cars,  10,631  were  fined  and  only  36  went  to 
prison  in  default  ;  under  the  heading  Sunday 
Trading,  6,654  were  fined  and  only  12  went  to 
prison  by  default.  These  offences  are  generally 
committed  by  persons  with  some  money ;  but 
where  the  parties  are  poor  what  a  terrible  difference 
in  their  punishment.     The  mere  giving  of  time  to 

l.p.  225  Q 


THE  LAW  AND  THE  POOR 

pay  fines  will  not  abolish  this  injustice  unless  the 
fines  are  made,  as  has  been  suggested,  in  some  ratio 
proportionate  to  a  man's  income.  If  it  were 
enacted  that  a  fine  should  not  exceed  a  day's  wage 
earned  by  the  prisoner,  that  would  be  a  method  of 
doing  away  with  the  burden  of  useless  imprison- 
ment that  has  to  be  borne  by  the  poor.  It  is  no 
use  enacting  that  the  Court  in  fining  an  offender 
shall  take  into  consideration  the  means  of  the 
offender.  I  make  no  doubt  that  this  is  done  already 
to  a  large  extent  by  stipendiaries  and  the  more 
enlightened  magistrates.  What  is  wanted  is  an 
actual  printed  tariff  of  fines  fairly  proportioned  to 
the  means  of  the  offender,  beyond  which  the  magis- 
trates may  not  go.  Measures  that  depend  on  the 
sympathetic  working  by  the  members  of  the  bench 
will  be  in  many  districts  a  dead  letter,  and  inasmuch 
as  the  folk  who  go  to  prison  in  these  cases  are  always 
poor  people,  very  little  will  be  known  of  their 
trouble  except  by  those  few  persons  who  study  blue 
books  and  statistics. 

This  habit  of  the  magistracy  to  ignore  the  good 
intentions  of  Parliament  and  the  Home  Office  is  in 
nothing  more  marked  than  in  the  refusal  of  many 
country  benches  to  give  bail  to  poor  people  charged 
with  offences  that  have  to  be  tried  at  Sessions  or 
Assizes.  Many  judges  have  called  the  Grand 
Juries'  attention  to  the  large  number  of  prisoners 
who  are  left  in  prison  awaiting  trial,  some  of  whom 
are  ultimately  acquitted.  But  this  is  one  of  the 
matters  where  magistrates  must  of  necessity  have 
discretion,  and  although  they  receive  Home  Office 

226 


THE   POLICE   COURT 

circulars  calling  attention  to  their  duties  in  the 
matter  of  bail  they  prefer  to  go  their  own  wrong- 
headed  way  and  unnecessarily  keep  a  large  number 
of  poor  persons  in  prison  who  might  quite  safely  be 
allowed  to  remain  out  on  bail. 

It  is  curious  how  history  repeats  itself  and  how  a 
lay  magistracy,  as  a  type,  always  tends  to  act  without 
sympathy  or  consideration  for  the  poor.  A  hundred 
years  ago  the  Yorkshire  magistrates  came  to  the 
conclusion  that  it  was  a  most  improper  thing  that 
poor  people  committed  for  trial  to  the  House  of 
Correction  should  be  allowed  to  idle  their  time 
away  at  the  expense  of  the  county,  so  they  actually 
required  them  to  work  for  their  living,  and  as  the 
treadmill  was  the  only  apparatus  of  a  commercial 
character  in  the  gaol  the  poor  untried  prisoner  was 
put  to  walking  round  a  wheel  in  company  of  his 
convicted  brother.  The  way  in  which  the  matter 
was  put  by  Mr.  John  Headlam,  M.A.,  Chairman  of 
the  Quarter  Sessions  for  the  North  Riding  of  the 
County  of  York,  is  a  perfect  specimen  of  the  true 
Dogberry  temperament :  "  With  respect  to  those 
sentenced  to  labour  as  a  punishment,  I  apprehend, 
there  is  no  difference  of  opinion.  All  are  agreed 
that  it  is  a  great  defect  in  any  prison  where  such 
convicts  are  unemployed.  But  as  to  all  other 
prisoners,  whether  debtors,  persons  committed  for 
trial,  or  convicts  not  sentenced  to  hard  labour,  if 
they  have  no  means  of  subsisting  themselves,  and 
must,  if  discharged,  either  labour  for  their  livelihood 
or  apply  for  parochial  relief  ;  it  seems  unfair  to 
society  at  large,  and  especially  to  those  who  maintain 

227  q  2 


THE  LAW   AND   THE   POOR 

themselves  by  honest  industry,  that  those  who,  by 
offending  the  laws,  have  subjected  themselves  to 
imprisonment,  should  be  lodged  and  clothed  and  fed, 
without  being  called  upon  for  the  same  exertions 
which  others  have  to  use  to  obtain  such  advan- 
tages." 

Of  course  the  whole  question  is  begged  when  an 
untried  prisoner  is  called  an  offender  against  the 
laws.  The  Headlam  view  of  him  always  has  been, 
and  is  to-day,  that  the  mere  fact  that  a  policeman 
has  arrested  him  is  proof  that  he  is  an  offender  ; 
this  for  all  time  has  been  justices'  law,  but  it  is 
doubtful  whether  the  old  doctrine  that  a  man  is  to 
be  deemed  innocent  until  found  guilty  by  a  jury  of 
his  peers  is  not  still  sound  law  and  ought  not  to  be 
more  fully  recognised  by  the  lay  magistrates. 

Of  course  the  particular  wrong  that  Mr.  Headlam 
was  contending  for  has  long  been  abolished,  not 
indeed  without  much  argument  and  trouble,  but  we 
still  punish  an  untried  man  by  imprisoning  him 
before  trial,  and  in  very  many  cases  this  is  wholly 
unnecessary.  The  idea  of  keeping  a  man  in  prison 
is  that  he  should  be  forthcoming  on  the  day  of  trial. 
In  some  serious  cases  it  is  obviously  necessary  to 
keep  a  man  in  custody,  but  in  many  small  cases  if  a 
cheap  bail  was  fixed  there  would  be  no  difficulty  in 
finding  the  sureties  and  the  prisoner  could  be  out- 
side arranging  for  his  defence  and  earning  money 
for  the  support  of  his  family  until  the  day  of  the 
trial. 

Of  598  people  acquitted  at  Assize  Courts  only 
294  were  allowed  bail,  so  that  there  is  a  clear  ad- 

228 


THE   POLICE   COURT 

mission  in  the  official  figures  of  three  hundred 
innocent  persons — or  persons  not  provably  guilty — 
remaining  in  prison  because  the  justices  will  not 
carry  out  the  Home  Office  suggestions  as  to  bail. 
Remember  too  that  in  some  remote  places  there  are 
very  few  assizes  and  eighteen  of  these  unhappy 
persons  remained  over  three  months  in  prison 
awaiting  trial.  At  Quarter  Sessions  the  figures  are 
even  more  remarkable.  Of  1,586  prisoners  acquitted 
only  688  had  been  granted  bail.  Here  you  have  a 
large  number  of  innocent  men  and  women  kept  in 
gaol  charged  with  offences  that  are  not  of  the  most 
serious  character,  and  this  is  done  not  because  in 
this  peculiar  instance  the  law  itself  is  harsh — because 
the  law  permits  bail  and  the  government  office  calls 
on  the  magistrates  to  make  use  of  the  law — but 
because  the  law  is  administered  by  well-meaning 
but  incompetent  men  who  have  a  fixed  delusion, 
handed  down  to  them  from  their  forbears  of  hundreds 
of  years  ago,  that  a  man  arrested  for  a  crime  by  the 
police  and  awaiting  trial  is,  to  use  Mr.  Headlam's 
phrase,  "  an  offender  against  the  laws."  Where 
there  are  no  stipendiary  magistrates  it  would  not  be 
a  bad  plan  to  give  any  prisoner  a  right  to  appeal 
on  refusal  of  bail  to  a  judge  of  the  County  Court 
who  lives  within  the  district  and  is  of  necessity  a 
magistrate  though  he  seldom  has  much  time  to  sit 
at  petty  sessions. 

Before  we  leave  the  Police  Court  I  should  like 
to  draw  attention  to  a  well-founded  complaint 
against  police  methods  that  the  Home  Office 
might  certainly  take  into  their  consideration  when 

229 


THE   LAW  AND  THE   POOR 

they  are  reforming  the  administration  of  the  criminal 
law.  I  refer  to  the  practice  of  identification  which 
has  come  so  prominently  before  public  notice  in 
recent  criminal  trials.  I  never  met  a  prisoner  who 
felt  that  it  was  fairly  done.  For  myself,  I  have  the 
firmest  belief  that  the  police  endeavour  as  a  rule  to 
do  what  is  right  and  straight,  but  after  all  we  must 
not  lose  sight  of  the  fact  that  the  police  are  there 
to  clear  up  the  crime  and  to  run  in  somebody — the 
real  criminal  of  course  for  choice — and  it  seems 
hardly  right  to  put  them  at  this  very  critical 
moment  into  the  position  of  a  judicial  authority 
deciding  the  most  important  point  for  or  against 
the  man  they  have  arrested  and  believe  to  be 
guilty. 

I  have  always  wondered  what  legal  right  a  police- 
man has  to  put  you  in  a  row  with  a  lot  of  other  men 
and  bring  people  to  look  at  you.  Suppose  a  prisoner 
refused  to  undergo  the  ordeal  and  the  policeman 
used  force  to  compel  him,  could  the  prisoner  recover 
damages  for  assault.  These  are  recondite,  and  in  a 
sense  absurd  points  ;  but  they  do,  I  think,  help  one 
to  see  how  wrong  the  present  system  is.  At  the 
ceremony  of  identification  it  is  obviously  necessary 
that  there  should  be  a  presiding  magistrate  to  see 
fair  play  and  to  take  a  record  of  what  happened.  It 
is  really  a  part  of  the  trial  and  a  most  important 
part  of  the  trial.  That  a  witness  should  identify  a 
prisoner  in  a  police  yard  in  the  absence  of  a 
judicial  authority  is  clearly  an  unjust  thing.  Once 
he — or  more  especially  she — has  done  so,  the  further 
swearing  to  the  prisoner  when  he  is  in  the  dock  is 

230 


THE   POLICE   COURT 

nothing.  What  the  magistrate  ought  to  see  is  the 
demeanour  of  the  identifier  when  he  first  recognises 
the  prisoner  and  especially  ought  a  justice  to  be 
present  to  see  that  there  is  no  suspicion  of  unfairness 
in  the  methods  employed  by  the  police. 

We  have  had  so  many  tragedies  brought  about  by 
so-called  identification,  that  it  is  more  than  time 
that  the  business  of  it  was  taken  out  of  the  hands  of 
the  police  and  made  an  integral  part  of  the  trial 
before  the  magistrate  to  which  it  in  truth  belongs. 
These  reforms  will  not,  I  think,  come  about  until 
we  have  stipendiary  magistrates  on  the  county 
benches,  but  though  I  wish  to  see  this  I  do  not  want 
the  old  office  of  Justice  of  the  Peace  to  be  abolished. 
There  is,  and  rightly  ought  to  be,  a  keen  desire 
among  laymen  to  attain  to  this  position,  and  it  is 
an  office  of  much  dignity  and  respect  and  one  in 
which  a  good  man  under  sound  legal  advice  can  do 
worthy  public  service.  I  have  been  a  local  justice 
of  the  peace  for  many  years  and  can  testify  to  the 
number  of  occasions  upon  which  a  magistrate 
residing  in  his  district  is  called  upon  for  small 
services  that  would  cost  the  applicant  time  and 
money  if  there  was  no  available  magistrate. 

A  great  many  lay  benches  with  a  clerk  of  sound 
learning  and  legal  education  administer  excellent 
justice  throughout  the  country.  But  there  are 
classes  of  cases  connected  with  property  that  would 
be  better  tried  by  a  stipendiary  unconnected  with 
county  society.  I  have  a  passion  for  old-world 
things,  and  grieve  over  the  disappearance  of  the 
parish  constables,  the  head  boroughs,  the  tithing- 

231 


THE   LAW  AND   THE   POOR 

men,  the  aletasters,  the  beadles,  and  the  reeves.  I  do 
not  wish  to  abolish  the  Justice  of  the  Peace.  I  only 
wish  to  put  him  in  his  proper  place.  Of  course,  if 
he  cannot  be  happy  there,  then  I  am  afraid  he  will 
have  to  go. 


232 


CHAPTER   XII 

LANDLORD   AND   TENANT 

At  number  seven  there's  nob'dy  lives,  they  left  it  yesterday  ; 
Th'  bum-baylis  coom  an'  marked  their  things,  an'  took  'em  a' 

away. 
They  hardly  filled  a  donkey  cart — aw  know  nowt  wheer  they 

went — 
But  they  say  th'  chap  spent  his  brass  o'  drink  instead  o'  payin' 

th'  rent. 

Samuel  Laycock  :   "  Bowton's  Yard." 

In  this  branch  of  the  law  it  cannot  honestly  be 
said  that  the  legal  position  of  the  poor  is  very 
different  from  the  legal  position  of  the  rich.  Given 
private  ownership  of  land  and  the  right  of  a  landlord 
to  distrain  for  rent  in  arrear,  and  seize  and  sell  his 
tenant's  goods  to  pay  himself,  it  does  not  seem  that 
the  law  or  the  way  in  which  it  is  administered  is 
better  or  worse  for  rich  or  poor.  The  law  of  distress 
is,  as  its  name  implies,  a  harsh  and  cruel  remedy  and 
the  shadow  of  it  hangs  nearer  and  darker  over  the 
cottage  porch  than  over  the  doors  of  the  eligible 
mansion,  but  it  is  there  in  both  places.  To  a  weekly 
wage  owner  paying  an  exhausting  rent  out  of  a 
pitiful  wage,  the  ever  present  right  of  his  landlord 
to  distrain,  whilst  it  nerves  him  to  make  every  effort 
to  keep  a  clean  rent  book,  must  be  one  of  the  sad 
and  depressing  elements  of  daily  life  that  the  middle 

233 


THE   LAW   AND   THE   POOR 

classes  do  not  experience  so  directly.  It  is  pleasant 
to  record — what  is  in  fact  my  experience — that 
whatever  may  have  been  true  of  the  cruelty  of 
landlords  in  other  times  and  places  the  landlords 
of  to-day  owning  cottage  property  are  not  a  harsh 
race.  They  themselves,  especially  the  poorer  ones, 
have  their  own  troubles.  The  rates  have  to  be  paid, 
the  by-laws  to  be  observed,  the  notices  of  the 
sanitary  inspector  to  be  obeyed,  and  perhaps  the 
fact  that  they  themselves  have  to  ask  for  time  to 
pay  and  to  sue  for  leniency  from  corporations  and 
other  officials  leads  them  to  be  tender  with  their 
own  underlings.  Certain  it  is  that  in  the  putting 
in  force  of  the  right  to  evict  a  tenant  the  landlord 
is  very  long-suffering.  This  last  step  is  not  usually 
taken  until  the  rent  is  many  weeks,  or  often  months, 
in  arrear.  Even  when  an  eviction  order  is  granted, 
I  have  known  many  cases  where  a  landlord  renews 
the  tenancy  and  collects  the  arrears  at  small  instal- 
ments. 

Eviction  orders  are  very  often  asked  for  not  in 
the  landlord's  own  interest  but  in  the  community's. 
The  necessity  to  do  the  sanitary  requirements  of 
public  bodies  is  a  constant  source  of  eviction.  The 
tenant  having  no  neighbouring  house  to  go  to  clings 
to  the  undesirable  shelter  he  has  got  until  the  forces 
of  the  law  turn  him  out  in  the  interests  of  hygiene. 
Another  curious  cause  of  eviction  is  a  woman's 
tongue.  A  lady  with  what  is  technically  known  as 
"  a  tongue  "  will  set  all  her  neighbours  by  the  ears  ; 
houses  on  each  side  of  her  domicile  rapidly  empty, 
and  at  length  the  whole  street  comes  to  the  landlord 

234 


LANDLORD   AND   TENANT 

demanding  that  she  shall  go  or  threatening  to  depart 
themselves. 

The  lady  with  "  the  tongue  "  of  our  day  was,  and  as 
far  as  I  know  still  may  be,  known  to  the  law  as  a 
common  scold,  and  according  to  Chief  Justice  Holt 
was  punishable  by  ducking.  Mrs.  Foxby,  of  Maid- 
stone, was,  if  I  remember,  the  last  lady  who  was 
indicted  at  common  law  for  this  offence  and  sen- 
tenced to  be  ducked.  She  moved,  in  Trinity  Term, 
1703,  in  arrest  of  judgment  because  they  had  called 
her  in  the  indictment  "  calumniatrix "  and  not 
"  rixatrix  "  and  insisted  on  her  motion,  although 
Chief  Justice  Holt  in  kindly  warning  reminded  her 
that  ducking  in  Trinity  Term  was  pleasanter  than 
ducking  in  Michaelmas.  As  the  Court  pointed  out, 
mere  scolding  was  not  the  offence,  it  was  the  constant 
repetition  that  was  the  nuisance.  In  the  result,  after 
a  year's  litigation  the  flaw  in  the  indictment  saved 
the  Maidstone  lady  a  ducking  in  the  Medway. 

But  though  the  common  scold  and  the  ducking 
stool  no  longer  figure  in  the  quarter  sessions  calendar 
— though  it  would  rest  with  the  Court  of  Criminal 
Appeal  to  decide  if  they  are  yet  entirely  obsolete — 
the  woman  with  a  tongue,  the  "  rixatrix,"  or  lady 
brawler  is  undoubtedly  still  existent  and  has  to  be 
dealt  with  by  the  landlord  of  small  property  by 
County  Court  eviction. 

What  is  called  a  possession  summons  is  taken  out, 
and  in  the  hearing  of  it  the  lady  always  appears 
and  protests  vigorously  against  the  treatment  meted 
out  to  her,  arguing  that  the  street  is  in  a  conspiracy 
against  her,  and  that  she  is  the  one  quiet  peaceful 

235 


THE  LAW  AND   THE  POOR 

woman  in  the  neighbourhood.  Any  doubt  as  to  the 
correctness  of  the  judicial  decision  in  making  an 
eviction  order  is  solved  as  soon  as  the  order  is  made, 
when,  self-restraint  being  no  longer  necessary,  the 
full  force  of  "  the  tongue  "  is  turned  upon  the  land- 
lord, the  judge  who  is  in  league  with  him,  and  the  two 
stalwart  members  of  the  force  who  with  some 
difficulty  show  the  lady  the  door.  Next  to  dry  rot 
and  vermin,  a  tenant  with  "  a  tongue  "  is  the  greatest 
enemy  of  the  landlord  of  mean  streets. 

But  what  has  long  been  recognised  about  the 
status  of  landlord  and  tenant,  is  that  under  present 
economic  circumstances  it  is  impossible  for  a  wage- 
earner  to  obtain  at  the  expenditure  of  a  reasonable 
proportion  of  his  income  proper  housing  for  himself 
and  his  wife  and  children.  The  duty  of  the  State 
to  the  poor  in  this  matter  is  gradually  dawning  on 
people's  minds,  they  are  waking  up  to  the  fact  that 
it  cannot  be  done  solely  by  individual  effort,  and  on 
this  subject  the  law,  I  am  glad  to  report,  is  beginning 
to  make  serious  efforts  to  set  its  houses  in  order. 

At  present  legislation  has  taken  upon  itself  three 
objects  :  (i)  The  clearing  of  slum  areas  and  rebuild- 
ing new  dwellings,  with  powers  of  compulsory  pur- 
chase granted  to  local  bodies.  (2)  The  granting  to 
corporations  and  councils  power  to  close  insanitary 
houses,  and  to  make  their  owners  repair  them.  (3)  The 
permission  to  local  authorities  to  build  houses  for 
the  working  classes  where  there  is  an  insufficiency. 

We  are  a  slow  moving  race.  We  generally  do  our 
legislative  reforms  by  a  succession  of  statutes 
vigorously  fought  over  and  hacked  about  by  gay 

236 


LANDLORD   AND   TENANT 

party  spirits  whose  nearest  idea  of  patriotism  is  to 
queer  the  other  fellow's  pitch  and  spoil  his  budding 
statute  by  crimping  amendments  that  he  knows 
will  make  it  unworkable.  We  have  only  gone  a 
little  way  with  the  Housing  business  as  yet,  and  if 
the  next  statute  on  the  matter  could  be  put  in  the 
hands  of  a  small  committee  of  both  parties  to  draft 
and  bring  before  the  House,  perhaps  we  should  get 
somewhat  nearer  finality. 

It  is  rather  melancholy  reading  to  pick  up  the 
latest  pamphlet  of  the  bookstall  on  the  Housing 
Question  and  find  much  of  the  writer's  ingenuity 
wasted  in  trying  to  prove  that  his  party,  and  his 
only,  has  in  the  past  made  any  effort  to  better  the 
housing  of  the  people,  and  that  in  the  future  there 
is  only  one  honest  capable  scheme  which  is  worthy 
of  consideration.  There  is  not  much  real  help  in  these 
essays.  Their  burden  is  always  the  same.  Recollect 
at  the  Election  time — "  Short's  very  well  as  far  as 
he  goes,  but  the  real  friend  is  Codlin — not  Short." 

The  truth  is  that  neither  party  has  done  very 
much.  The  history  of  the  matter  is  much  as 
follows  :  Writers  of  all  parties  and  creeds  in  the 
Early  Victorian  days  wrote  eloquently  of  the  slum 
dwellings  of  our  great  cities.  Some  of  deeper 
insight  than  the  rest  saw  that  all  was  not  well, 
even  with  the  rose-covered  cottage  of  the  country- 
side. It  is  only  within  our  own  lifetime  that  we 
have  begun  to  learn  that  it  is  morally  and  eco- 
nomically wicked  for  a  nation  to  own  slums.  This 
truth  has  not  been  taught  us  by  the  priests  and 
politicians  of  our  time,  but  by  our  men  of  letters. 

237 


THE  LAW  AND  THE   POOR 

Dickens  knew  all  about  it  and  prophesied  in 
despair  that  we  should  have  to  wait  for  five  hundred 
years  for  reform.  You  remember  Tom-all-Alone's 
where  Jo  lives  :  "  It  is  a  black,  dilapidated  street, 
avoided  by  all  decent  people  ;  where  the  crazy  houses 
were  seized  upon,  when  their  decay  was  far  advanced, 
by  some  bold  vagrants  who,  after  establishing 
their  own  possessions  took  to  letting  them  out  in 
lodgings.  Now  these  tumbling  tenements  contain 
by  night  a  swarm  of  misery.  As,  on  the  ruined 
human  wretch,  vermin  parasites  appear,  so,  these 
ruined  shelters  have  bred  a  crowd  of  foul  existence 
that  crawls  in  and  out  of  gaps  in  walls  and  boards ; 
and  coils  itself  to  sleep,  in  maggot  numbers,  where 
the  rain  drips  in ;  and  comes  and  goes,  fetching  and 
carrying  fever,  and  sowing  more  evil  in  its  every 
footprint  than  Lord  Coodle,  and  Sir  Thomas  Doodle, 
and  the  Duke  of  Foodie,  and  all  the  fine  gentlemen 
in  office,  down  to  Zoodle,  shall  set  right  in 
five  hundred  years— though  born  expressly  to 
do  it." 

Maybe  you  could  not  find  to-day  an  exact  replica 
of  Tom-all-Alone's  ;  certainly  we  have  swept  away 
acres  of  them,  but  it  is  still  worth  while  to  read  and 
remember  such  descriptions,  if  only  to  remind  our- 
selves what  the  poor  have  to  suffer  if  the  law 
remains  powerless  and  inert  in  the  compulsory 
provision  of  decent  housing.  People  grumble  at 
State  interference,  but  they  forget  what  made  it 
necessary.  Rampant  individualism  led  to  housing 
workmen  in  the  tailor's  shop,  described  by  Alton 
Locke  "  a  low  lean-to  room,  stifling  me  with  the 

238 


LANDLORD   AND   TENANT 

combined  odours  of  human  breath  and  perspira- 
tions, stale  beer,  the  sweet  sickly  smell  of  gin, 
and  the  sour  and  hardly  less  disgusting  one  of  new 
cloth.  On  the  floor,  thick  with  dust  and  dirt, 
scraps  of  stuff  and  ends  of  threads,  sat  some  dozen 
haggard,  untidy,  shoeless  men,  with  a  mingled 
look  of  care  and  recklessness  that  made  me  shudder. 
The  windows  were  tight  closed  to  keep  out  the  cold 
winter  air  ;  and  the  condensed  breath  ran  in  streams 
down  the  panes,  chequering  the  dreary  outlook  of 
chimney-tops  and  smoke." 

When  we  are  wondering  how  far  it  is  our  right  and 
duty  to  interfere  between  a  man  and  his  house 
property  or  whether  it  is  incumbent  upon  the  nation 
to  take  upon  itself  the  burden  of  housing  its  people, 
it  is  useful  to  look  on  these  pictures  of  England  in 
the  glorious  days  of  Queen  Victoria  and  Albert  the 
Great  and  Good.  The  problems  were  there  then, 
but  it  was  not  the  statesmen  who  saw  them  and 
urged  their  solution. 

Nor  was  it  only  sentimental  Radicals  who  painted 
in  lurid  colours  the  horrible  houses  of  the  people. 
DTsraeli,  in  "  Sybil,"  draws  an  eloquent  picture  of  the 
narrow  lanes  of  the  rural  town  of  Marney,  which 
might  be  any  country  town  of  the  South  of  England 
— the  rubble  cottages  with  gaping  chinks  admitting 
every  blast,  with  rotten  timbers,  yawning  thatch 
letting  in  the  wind  and  wet,  and  open  drains  full  of 
decomposing  animal  and  vegetable  refuse,  spread- 
ing out  here  and  there  with  stagnant  pools — these 
things  were  common-places  in  the  homes  of  rural 
England  in  1845. 

239 


THE  LAW  AND  THE  POOR 

"  These  wretched  tenements,"  writes  DTsraeli, 
"  seldom  consisted  of  more  than  two  rooms,  in  one 
of  which  the  whole  family,  however  numerous, 
were  obliged  to  sleep,  without  distinction  of  age  or 
sex  or  suffering.  With  the  water  streaming  down 
the  walls,  the  light  distinguished  through  the  roof, 
with  no  hearth  even  in  winter,  the  virtuous  mother 
in  the  sacred  pangs  of  child-birth  gives  forth  another 
victim  to  our  thoughtless  civilisation,  surrounded 
by  three  generations,  whose  inevitable  presence  is 
more  painful  than  her  sufferings  in  that  hour  of 
travail  ;  while  the  father  of  her  coming  child,  in 
another  corner  of  the  sordid  chamber,  lies  stricken 
by  that  typhus  which  his  contaminating  dwelling 
has  breathed  into  his  veins,  and  for  whose  next  prey 
is  perhaps  destined  his  new-born  child.  These 
swarming  walls  had  neither  windows  nor  doors 
sufficient  to  keep  out  the  weather  or  admit  the  sun 
or  supply  the  means  of  ventilation,  the  humid  or 
putrid  roof  of  thatch  exhaling  malaria  like  all 
other  decaying  vegetable  matter.  The  dwelling 
rooms  were  neither  boarded  nor  paved  ;  and  whether 
it  were  that  some  were  situate  in  low  and  damp 
places,  occasionally  flooded  by  the  river  and  usually 
much  below  the  level  of  the  road,  or  that  the  springs, 
as  was  often  the  case,  would  burst  through  the  mud 
floor,  the  ground  was  at  no  time  better  than  so 
much  clay,  while  sometimes  you  might  see  little 
channels  cut  from  the  centre  under  the  doorways  to 
carry  off  the  water,  and  the  door  itself  removed  from 
its  hinges,  a  resting  place  for  infancy  in  its  deluged 
home.     These  hovels  were,  in  many  instances,  not 

240 


LANDLORD   AND   TENANT 

provided  with  the  commonest  conveniences  of  the 
rudest  police  ;  contiguous  to  every  door  might  be 
observed  the  dung  heap  on  which  every  kind  of 
filth  was  accumulated  for  the  purpose  of  being 
disposed  of  for  manure,  so  that  when  the  poor  man 
opened  his  narrow  habitation  in  the  hope  of  refresh- 
ing it  with  the  breeze  of  summer,  he  was  met  with  a 
mixture  of  gases  from  reeking  dung-hills." 

Science,  medicine,  philanthropy,  sanitary  engineer- 
ing and  enlightened  local  government  have  done 
something  to  remove  many  of  the  horrible  things 
DTsraeli  describes,  but  one  cannot  say  that  the  law 
has  co-operated  with  much  vigour  in  this  beneficent 
crusade.  Without  law  and  compulsion  the  work 
will  never  be  done  as  thoroughly  as  is  necessary 
throughout  the  length  and  breadth  of  the  land. 

The  eloquent  outcry,  from  writers  of  all  creeds 
and  parties,  demanding  better  houses  for  the  people 
at  length  made  itself  heard  within  the  walls  of  West- 
minster. But  it  was  not  until  1868  that  the  Torrens 
Act  was  passed,  the  first  attempt  of  the  Legislature 
to  deal  with  slum  property.  This  was  followed  by 
the  Artisans  Dwelling  Act  of  1875,  which  enabled 
local  authorities  to  compulsorily  purchase  slum 
areas  and  re-build  sanitary  dwellings.  In  Birming- 
ham, where  Mr.  Joseph  Chamberlain  was  mayor, 
magnificent  use  was  made  of  these  powers  to  the 
great  present  benefit  of  the  city.  In  Liverpool, 
Manchester,  and  other  towns  something  was  done, 
but  as  the  business  depended  in  the  main  on  local 
initiative,  and  the  spending  of  money,  much  more 
remained  undone. 

l.p.  241  R 


THE  LAW   AND  THE  POOR 

A  few  small  measures  were  passed,  but  they  did 
not  lead  to  any  great  practical  work  being  put  in 
hand,  and  again  it  was  the  man  of  letters  who 
wakened  the  national  conscience.  I  remember  well 
in  the  eighties  the  appearance  of  "  How  the  Poor 
Live  "  by  George  R.  Sims  and  the  interest  and 
sympathy  it  aroused.  There  is  no  exaggeration  in 
the  book,  but  merely  a  graphic  record  of  fact,  and  it 
proves  with  melancholy  certainty  the  small  progress 
that  had  been  made  since  the  days  of  Dickens, 
Kingsley  and  DTsraeli. 

It  was  with  a  great  chorus  of  self  congratulation 
and  the  loud  braying  of  journalistic  trumpets  that 
on  March  4th,  1884,  a  Royal  Commission  was 
announced  to  inquire  into  the  Housing  of  the  Work- 
ing Classes.  It  is  almost  forgotten  to-day,  but  in 
its  time  it  aroused  great  hopes  in  the  breast  of  social 
reformers.  Sir  Charles  Dilke  was  Chairman,  the 
Prince  of  Wales  himself  was  a  working  member  of 
the  commission,  Cardinal  Manning,  Lord  Salisbury, 
Samuel  Morley,  Jesse  Collings,  Henry  Broadhurst 
and  other  great  public  men  of  the  day  were  his 
colleagues. 

The  overcrowding,  the  immorality  and  disease  and 
waste  caused  by  bad  housing,  the  terrible  tax  of  rent 
on  the  incomes  of  the  poor  were  all  rehearsed  in 
painful  detail  before  these  great  ones  of  the  earth. 
But  when  one  comes  to  remedies  and  recommenda- 
tions, there  is  nothing  except  the  most  trivial  and 
inadequate  propositions  that  the  eminent  ones  can 
agree  upon. 

Their  first  suggestion  is  that  vestries  and  district 
242 


LANDLORD   AND   TENANT 

boards  should  put  in  force  existing  by-laws,  though 
who  was  to  make  them  do  it  is  not  mentioned. 
Then  they  think  it  would  be  an  added  decency  to 
the  lives  of  the  poor  if  there  were  more  mortuaries 
near  their  homes  to  take  the  dead  bodies  from  the 
already  overcrowded  rooms — as  though  the  problem 
they  were  there  to  consider  was  not  the  housing  of 
the  quick,  but  the  housing  of  the  dead. 

Building  by-laws,  sanitary  inspection,  and  work- 
men's trains  are  a  few  of  the  Mother  Partington  Mop 
remedies  that  this  great  Commission  had  to  offer  to 
keep  back  the  sea  of  troubles  that  overwhelmed  the 
poor  of  our  great  cities  in  their  struggle  for  decent 
existence. 

One  cannot  blame  the  members  of  the  Commission 
that  so  little  was  suggested.  It  was  inevitable  when 
one  remembers  that  nothing  at  all  is  possible  in  the 
right  direction  without  a  great  upheaval  which  is 
bound  to  re-act  injuriously  on  some  of  the  greatest 
vested  interests  in  the  country.  A  meeting  of  the 
great  ones  in  whom  the  interests  vest  is  not  likely  to 
bring  about  immediate  reforms. 

But  at  all  events  here  in  the  pages  of  the  printed 
evidence  are  the  facts.  The  horrors  painted  by 
DTsraeli,  Kingsley,  Dickens  and  George  R.  Sims  are 
at  least  patiently  collated  and  indexed  for  us,  and 
now  after  thirty  years  we  should  do  better  not  to 
expatiate  on  the  little  we  have  done  for  betterment, 
but  to  acknowledge  how  mucli  we  have  left  undone, 
and  show  our  repentance  in  energetic  deeds.  No 
one  can  recognise  more  clearly  than  I  do  the  value 
of  such  authoritative  evidence  of  facts  and  details 

243  R  2 


THE  LAW  AND  THE  POOR 

as  are  collected  in  the  report,  but  the  reading  of 
them  only  makes  one  the  more  impatient  at  the 
method  of  government  which  can  tolerate  the 
continuance  of  such  abuses. 

In  1900,  little  or  nothing  having  been  done,  it 
occurred  to  Lord  Salisbury  that  it  was  time  to  have 
another  Commission.  But  it  was  not  until  1902 
that  a  Select  Committee  of  both  Houses  was  ap- 
pointed to  consider,  in  Lord  Salisbury's  own  words, 
how  to  get  rid  of  "  what  is  really  a  scandal  to  our 
civilisation — I  mean  the  sufferings  which  many  of 
the  working  classes  have  to  undergo  in  order  to 
obtain  even  the  most  moderate,  I  may  say  the  most 
pitiable  accommodation." 

The  problem  could  not  be  better  stated.  The 
scandal  was  with  us  in  1885,  it  was  with  us  in  1900, 
and  it  is  with  us  to-day.  At  least  if  we  are  un- 
willing or  incompetent  to  solve  it  let  us  have  done 
with  the  constant  consideration  and  further  con- 
sideration of  Royal  and  Select  Commissions  which 
only  make  the  hearts  of  the  poor  sick  with  promises 
and  hopes  that  can  never  be  fulfilled  in  our  own 
generation. 

One  cannot  here  set  out  in  detail  the  various 
Housing  Acts  that  have  been  passed ;  there  was  one 
in  1900,  which  apparently  led  to  more  insanitary 
houses  being  closed  than  new  cottages  built.  There 
was  another  in  1903,  with  further  new  provisions  and 
modifications  of  former  schemes,  and  lastly  comes 
the  Housing  and  Town  Planning  Act,  which  deals 
rigorously  with  owners  of  insanitary  property.  This 
Act  industriously  made  use  of  may  help  to  realise 

244 


LANDLORD   AND   TENANT 

our  hopes  of  the  possibility  of  hygienic  pleasances 
for  the  poor  of  future  generations. 

Here  we  have  a  short  record  of  some  fifty  years  of 
legislative  effort — more  or  less  honest — in  which 
each  party  has  sought  to  promote  measures  to  help 
the  poor  who  are  oppressed,  as  Lord  Salisbury  said, 
by  this  "  scandal  to  our  civilisation,"  the  want  of 
decent  housing.  And  yet  how  little  has  been 
achieved,  how  small  the  results,  how  disappointing 
to  find  the  great  men  who  talked  in  Parliament  and 
sat  on  Commissions  and  discussed  these  matters 
with  so  much  learning  and  ability  passing  away  and 
leaving  this  problem  for  us  to  tackle,  and  we  on  our 
part  looking  idly  on  and  still  wondering  what  can 
be  done.  If  our  schoolmasters  had  taught  us  how 
to  make  bricks  and  build  with  them  instead  of  how 
to  read  books  and  write  more  of  them,  better  results 
perhaps  had  been  already  achieved. 

There  are  many  acres  of  houses  in  England  built 
prior  to  1870  that  exhibit  all  the  slum  traits  that 
have  been  so  eloquently  described  in  literature,  and 
many  millions  of  our  fellow  citizens  live  in  houses 
which  fall  below  the  minimum  standard  of  sanita- 
tion where  the  decent  separation  of  the  sexes  is 
impossible  and  the  general  conditions  of  life  are 
sunless  and  miserable.  The  amount  of  over- 
crowding in  England  and  Wales  is  shown  graphically 
enough  in  the  census  returns  for  191 1.  Over- 
crowding from  a  census  point  of  view  means  that 
more  than  two  persons  live  in  a  room,  counting  the 
kitchen  as  a  room,  but  not  the  scullery.  "  Thus,'' 
as  the  Editor  of  the  Land  Inquiry  Report  tells  us, 

245 


THE  LAW  AND  THE   POOR 

"  if  a  tenement  or  cottage  consists  of  two  bedrooms 
and  a  kitchen,  the  Census  Authorities  would  only 
describe  it  as  overcrowded  if  there  were  more  than 
six  persons  living  in  it,  no  matter  how  small  the 
rooms.  The  Census  test  of  overcrowding  is,  in  fact, 
quite  inadequate  to  measure  the  full  extent  of  the 
evil,  and  there  is  great  need  for  the  adoption  of  a 
more  accurate  one.  Even  adopting  this  standard, 
however,  the  Census  Authorities  find  that  one-tenth 
of  the  total  urban  population  of  England  and  Wales 
are  overcrowded.  This  means  that  nearly  3,000,000 
persons  are  overcrowded." 

No  one  who  is  constantly  meeting  the  victims  of 
this  state  of  affairs,  and  discussing  with  them,  as  a 
County  Court  Judge  has  to  do,  their  domestic 
affairs,  can  fail  to  be  struck  with  the  large  amount 
of  infantile  mortality  and  disease,  and  the  prevalence 
of  tuberculosis  and  the  general  physical  and  moral 
weariness  and  debility,  which  may  in  a  great  measure 
be  traced  to  the  bad  conditions  in  which  the  working 
classes  must  perforce  live  because  there  is  nothing 
better  obtainable. 

The  price  paid  for  such  accommodation  as  there 
is,  is  a  cruel  tax  on  the  working  man.  For  the 
meanest  shelter  he  has  to  pay  anything  up  to  twenty 
per  cent,  of  his  weekly  income.  Imagine  a  man  with 
a  thousand  a  year  spending  two  hundred  a  year  in 
rent  alone.  How  eloquent  would  the  Official  Receiver 
be  did  bankruptcy  supervene,  as  it  probably  would, 
and  what  homilies  he  would  preach  on  the  rash  and 
extravagant  folly  of  the  bankrupt  in  spending  so 
large  a  proportion  of  his  income  on  a  house.    And 

246 


LANDLORD   AND   TENANT 

yet  this  extravagance  is  compulsory  to  a  working 
man,  who  has  to  pay  out  of  his  wages  for  a  mere  roof 
over  his  head  money  that  is  badly  needed  for  the 
food  and  clothing  of  himself  and  his  family. 

I  have  dwelt  on  this  subject  at  some  length 
because  in  most  of  the  chapters  of  this  book  my 
complaint  has  been  that  the  laws  are  insufficient 
to  help  the  poor,  because  they  have  in  past  days 
been  enacted  by  the  rich,  and  are  still  being 
administered  by  the  rich,  without  knowledge  of,  and 
sympathy  for,  the  best  interests  of  the  poor.  Here 
the  problem  is  entirely  different.  Everyone  must 
admit  the  energy  and  good  faith  of  all  classes  and 
parties  and  officials,  within  the  rules  of  the  party 
game,  in  their  endeavour  to  cope  with  a  condition 
of  things  which  is  an  admitted  national  disgrace, 
and  a  scandal  to  civilisation.  The  melancholy 
conclusion,  however,  stares  one  in  the  face.  The 
result  of  interminable  inquiries  and  committee 
meetings  and  palaver  is  plain  unmistakable  failure. 
The  fringe  of  the  subject  has  scarcely  been  reached, 
and  the  state  of  affairs  which  the  man  of  letters 
portrayed  to  the  shame  of  our  grandfathers  is 
likely  enough,  it  would  seem,  to  be  "  copy  "  for  our 
grandchildren  and  their  grandchildren  to  journalise 
with  world  without  end  Amen  ! 

And  although  it  would  be  impertinent  in  me  to 
pretend  to  have  a  remedy  for  these  evils  where  all 
the  great  ones  have  failed  to  bring  about  reform, 
yet  I  cannot  help  thinking  that  the  reason  of  the 
failure  is  the  reason  of  much  of  our  legislative 
failure— the  dread  of  vested  interests  and  the  per- 

247 


THE  LAW  AND   THE   POOR 

missive  character  of  the  statutes  passed.  What  is 
the  good  of  asking  a  town  council  of  builders  and 
landowners  and  estate  agents  to  put  in  force  laws 
that  will,  or  at  least  are  expected  to,  have  the 
effect  of  diminishing  their  incomes  ?  Should  I,  or 
would  you,  enforce  an  Act  of  Parliament  with  any 
j  oy f  ul  energy  when  we  knew  that  the  more  thoroughly 
we  did  it  the  more  we  should  be  out  of  pocket  ?  It 
is  asking  too  much  of  human  nature. 

There  has  been  a  clear  failure  in  the  smaller 
local  governing  bodies  in  putting  in  force  even  such 
legislation  as  exists  for  the  betterment  of  the  dis- 
trict. The  Rivers  Pollution  Acts  are  a  standing 
instance  of  the  neglect  of  duty  by  local  councils. 
For  years  nothing  was  done  to  put  the  Acts  in  force, 
because  the  smaller  polluters  were  the  mill  owners, 
who  were  members  of  the  local  council,  and  the 
biggest  polluter  of  all  was  the  council  itself  pouring 
crude  sewage  into  the  river  to  relieve  the  rates. 
Paliament  lacked  a  sense  of  humour  when  it  expected 
mill  owners  and  sewage  boards  to  prosecute  them- 
selves for  river  pollution. 

Good  work  in  housing  will  never,  I  think,  be  really 
effectively  done  until  it  is  left  to  the  initiative  of  a 
medical  officer  of  health  or  a  sanitary  engineer,  with 
judicial  power  to  order  things  to  be  done  and  force 
behind  him  to  have  them  done.  The  idea  that  a 
medical  officer  of  health  should  be  a  servant  of  the 
casual  butchers  and  bakers  of  the  Town  Council  is, 
on  the  face  of  it,  an  absurd  one.  He  should  be  as 
permanent  and  independent  as  are  the  stipendiary, 
the  judge,  or  the  coroner,  for  he  requires  even  more 

248 


LANDLORD  AND   TENANT 

than  common  fearlessness  to  deal  roundly  with 
the  jerry  builders  and  slum  owners  who  are  his 
aldermen  and  councillors,  and  who  at  present  sit 
on  a  committee  of  appeal  from  his  decisions. 

As  long  as  these  matters  are  left  solely  to  local 
bodies  the  real  burden  of  financial  consideration, 
the  lack  of  personal  knowledge  of  hygiene  and 
sanitation  among  the  members  themselves,  and  the 
shrinking  from  enforcing  legal  hardships  on  the 
poor  owners  of  bad  property,  will  alone  prevent 
effective  reform.  To  these  natural  and  honest 
forces  must  also  be  added  the  weight  of  vested 
interests,  which  deliberately  obtain  power  on  local 
bodies  for  the  purpose  of  preventing  housing 
reform  being  put  into  thorough  operation. 

Never  was  there  a  greater  and  louder  demand 
by  the  people  for  a  fair  share  of  the  land  they  live 
in.  The  countryman  wants  his  plot  and  his  cottage, 
and  the  town  dweller  a  decent  house  at  a  reasonable 
rent.  This  is  the  "  condition  of  England  question  " 
to-day  as  it  was  eighty  years  ago.  Never  were  there 
more  earnest  and  sincere  people  discussing  what  is 
to  be  done  and  how  it  is  possible  to  transform  slums 
into  decent  dwellings  by  Act  of  Parliament.  We 
have  a  willing  legislature,  a  desire  to  make  laws  for 
the  benefit  of  the  poor,  and  after  many  efforts  the 
result  has  to  be  written  down  as  failure  and  stagna- 
tion. It  would  almost  seem  as  though  voluntary 
effort  in  this  affair  had  pronounced  itself  impossible, 
and  it  remains  undealt  with  until  those  who  are 
the  real  sufferers  by  the  system  feel  strong  enough 
to  put  it  right. 

249 


THE   LAW  AND  THE  POOR 

Carlyle  in  an  eloquent  passage  cries  out  in  his 
passionate  way  :  "  Might  and  Right  do  differ  fright- 
fully from  hour  to  hour  ;  but  give  them  centuries 
to  try  it  in,  they  are  found  to  be  identical.  Whose 
land  was  this  of  Britain  ?  God's  who  made  it, 
His  and  no  other's  it  was  and  is.  Who  of  God's 
creatures  had  a  right  to  live  in  it  ?  The  wolves  and 
bisons  ?  Yes,  they  ;  till  one  with  a  better  right 
showed  himself.  The  Celt,  '  aboriginal  savage  of 
Europe,'  as  a  snarling  antiquary  names  him  arrived, 
pretending  to  have  a  better  right,  and  did  accord- 
ingly, not  without  pain  to  the  bisons,  make  good  the 
same.  He  had  a  better  right  to  that  piece  of  God's 
land  ;  namely,  a  better  might  to  turn  it  to  use — a 
might  to  settle  himself  there  and  try  what  use  he 
could  turn  it  to.  The  bisons  disappeared  ;  the  Celts 
took  possession  and  tilled." 

Interpreting  this  passage  as  one  written  in  the 
true  frenzy  of  prophecy,  two  things  seem  to  me  to 
take  clear  shape  in  the  future  outlook  of  the  housing 
question.  In  the  first  place,  it  would  seem  that  it 
will  have  to  be  settled  by  a  Celt,  and  in  the  second 
place  it  will  not  be  achieved  "  without  pain  to  the 
bisons." 

One  would  have  thought  that  a  better  plan  would 
be  a  small  business  parliamentary  committee  of  all 
interests  with  power  to  enforce  their  decrees  against 
owners  and  corporate  bodies.  Something  perma- 
nent is  necessary,  akin  to  the  Imperial  Defence 
Committee,  which  knows  no  party  politics.  Are  we 
not  here  in  the  face  of  a  real  danger  to  the  nation  ? 
Already  endeavours  have  been  made  to  take  this 

250 


LANDLORD   AND  TENANT 

matter  out  of  the  common  rut  of  party  politics,  but 
these  efforts  have  not  been  altogether  successful,  and 
if  the  matter  is  not  settled  soon  there  would  seem 
nothing  for  it  but  a  forcible  solution  and  a  merry 
set-to  between  the  Celt  and  the  bison,  in  which  we 
may  expect  the  Celt  will  get  the  better  of  the  bison 
but  we  cannot  be  sure  that  the  poor  will  get  all  they 
need  even  from  the  Celt. 


251 


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CHAPTER   XIII 

THE   TWO   PUBLIC   HOUSES 

i.  The  Alehouse. 

Judged  by  no  o'er-zealous  rigour 
Much  this  mystic  throng  expresses  ; 

Bacchus  was  the  type  of  vigour 
And  Silenus  of  excesses. 

Longfellow  :   "  Drinking  Song." 

Whatever  you  may  think  about  it  you  cannot 
travel  from  Charing  Cross  to  Dijon  through  the  hop- 
fields  of  Kent  to  the  vineyards  of  the  C6te-d'Or 
without  admitting  that  whether  the  vine  be  a  gift 
of  good  or  evil  it  has  come  to  stay.  Bacchus  is 
still  full  of  vigour  and  has  as  many  followers  as 
ever.  But  the  law  has  nothing  to  say  to  Bacchus. 
The  law  is  after  old  Silenus.  It  lures  him  into  a 
den  and  makes  him  drunk  and  then  locks  him  up, 
and  the  holy  Willies  wag  their  heads  at  his  shame 
and  collect  money  for  his  reformation. 

There  are  two  public  houses  open  to  the  poorer 
citizens — the  Alehouse  and  the  Workhouse.  The 
rich  man  frequents  neither,  yet  as  magistrate  or 
guardian  he  takes  upon  himself  to  lay  down  the  rules 
by  which  they  shall  be  run.  These  fussy,  amiable, 
amateur  bosses  have  conspicuously  failed  at  their 

252 


THE  TWO   PUBLIC   HOUSES 

job.  It  is  not  to  be  wondered  at.  As  an  able 
Manchester  business  man  once  said  to  me  of  his 
partner  :  "He  loves  sitting  on  the  licensing  bench, 
and  thank  heaven  he  does  ;  it  keeps  him  out  of  the 
office."  But  even  if  the  bosses  were  capable  and 
intelligent  they  could  not  hope  to  succeed  in  their 
work.  Public  institutions  should  be  governed  by 
the  men  who  make  use  of  them.  The  rich  man's 
public-house  is  so  regulated — and  what  is  the  result  ? 
One  may  not  approve  of  every  detail  of  cookery  or 
decoration  at  hotels  like  the  Ritz  in  London,  or  the 
Adelphi  and  Midland  in  Liverpool  and  Manchester, 
but  the  average  middle-class  man  will  find  in  them 
such  reasonable  standard  of  comfort  as  he  desires. 
There  is,  at  all  events,  space  and  light  and  air, 
cleanliness,  and  some  luxury.  On  proper  occasions 
and  in  fit  places  there  is  music,  dancing,  and  billiards, 
and  you  may  play  a  game  of  bridge  with  your  friends 
when  you  wish,  even  for  threepence  a  hundred,  in  a 
private  room.  Moreover,  there  is  always  food  of 
good  quality  obtainable  at  varied  prices,  and  you 
need  not  take  your  drink  standing  at  a  counter, 
though  you  can  if  you  wish  to  when  there  is  an 
American  bar. 

Why  may  not  the  working  man  have  similar 
entertainment  at  the  Pig  and  Whistle  ?  A  complete 
answer  to  that  question  would  necessitate  a  study 
of  the  position  of  artificers  and  labourers  in  the 
middle  ages  and  a  short  history  of  the  ideals  of  the 
well-to-do  puritans. 

The  rich  have  had  two  objects  in  view  in  their 
legislation  about  the  working-man's  public  house. 

253 


THE  LAW  AND  THE   POOR 

A  certain  section  of  the  rich — the  brewers — have 
aimed  at  a  monopoly  of  the  right  to  sell  him  ale,  and 
nothing  else,  at  the  biggest  possible  profit  to  them- 
selves. A  second  section  opposing  the  first — the 
teetotal  magistracy — have  sought  to  make  the 
public  house  as  dreary  and  miserable  a  place  as 
possible  in  order  to  punish  the  wicked  man  who 
wants  to  drink  ale.  Between  the  brewer  and  the 
puritan  the  respectable  working  man  with  a  normal 
thirst  has  been  jockeyed  out  of  his  freedom.  Swilling 
and  tippling  in  alehouses  and  private  clubs  has  been 
encouraged ;  the  reasonable  use  of  ale — which 
Mr.  Belloc  rightly  asserts  to  be  the  finest  beverage 
in  the  world — has  been  crabbed  and  discouraged. 
Except  an  opium  den — of  which  I  have  only  hearsay 
knowledge — there  is  probably  nothing  more  com- 
fortless and  degrading  than  the  lower-class  alehouse 
of  our  towns  and  cities. 

Even  in  the  remote  days  of  Plato  it  was  recog- 
nised— at  all  events  by  philosophers — that  there 
was  such  a  thing  as  thirst.  "  No  one  desires 
drink  simply,  but  good  drink,  nor  food  simply,  but 
good  food  ;  because,  since  all  desire  good  things,  if 
thirst  is  a  desire,  it  must  be  a  desire  of  something 
good."  Further  on  in  the  discussion,  Socrates 
addresses  Ademantus  thus  :  "  Then  for  any  par- 
ticular kind  of  drink  there  is  a  particular  kind  of 
thirst ;  but  thirst  in  the  abstract  is  neither  for  much 
drink,  nor  for  little,  neither  for  good  drink  nor  for 
bad,  nor,  in  one  word  for  any  kind  of  drink,  but 
simply  and  absolutely  thirst  for  drink  is  it  not  ?  " 

"  Most  decidedly  so,"   replies   Ademantus — who 

254 


THE  TWO   PUBLIC   HOUSES 

never  on  any  occasion  stood  up  to  Socrates  and 
contradicted  him.     "  Most  decidedly  so." 

"  Then  the  soul  of  a  thirsty  man,"  continues 
Socrates,  "in  so  far  as  he  is  thirsty  has  no  other 
wish  than  to  drink  ;  but  this  it  desires  and  towards 
this  it  is  impelled." 

"  Clearly  so." 

If  the  licensing  bench,  and  especially  the  teetotal 
portion  of  it,  could  once  arrive  as  far  in  their  studies 
of  the  subject  as  Socrates  had  done,  and  could 
comprehend  the  zoological  fact  that  man  was  a 
mammal  with  a  thirst,  they  would  be  on  the  road  to 
enlightenment,  temperance,  and  reform. 

Of  course  Socrates  knew  all  that  the  puritans  know 
and  a  lot  more  about  the  rational  satisfaction  of  love 
and  hunger  and  thirst  and  the  irrational  and  con- 
cupiscent desires  that  are  attached  to  all  natural 
appetites,  but  in  dealing  with  the  law  of  licensing 
in  reference  to  the  poor  these  considerations  are 
not  really  important.  What  is  wanted  is  equality. 
Grant  to  the  poor  the  same  reasonable  facilities  of 
enjoyment  that  you  grant  to  the  rich,  and  leave  it 
to  public  opinion  to  see  that  they  are  not  abused. 

It  is  a  grave  disaster  that  the  granting  and  regula- 
tion of  licenses  should  have  fallen  into  the  hands  it 
has.  Mr.  Balfour's  observation  "  that  among  all 
the  social  evils  which  meet  us  in  every  walk  of  life, 
every  sphere  of  activity,  the  greatest  of  all  evils  is 
the  evil  of  intemperance  "  is  useful  as  a  peroration 
to  any  platform  speech  on  the  subject,  but  only 
makes  the  judicious  grieve  that  with  the  opportunity 
to  do  exactly  as  he  liked  and  the  ability  to  draft 

255 


THE   LAW  AND  THE   POOR 

useful  legislation,  Mr.  Balfour  did  nothing  whatever 
to  improve  matters  and  diminish  the  evil  of  which 
he  was  so  sensible. 

Section  4  of  his  Act  does  indeed  enable  the 
magistrates  to  grant  new  licenses  and  to  make  their 
own  conditions  as  to  the  payments  to  be  made  by  the 
licensee,  the  tenure  of  the  license,  and  any  other 
matters  "  as  they  think  proper  in  the  interests  of  the 
public."  Under  this  section  if  there  were  a  licensing 
bench  containing  a  working  majority  of  friends  of 
the  people,  men  who  had  no  social  or  political  interest 
whatever  either  in  breweries  or  teetotallers,  it  would 
seem  that  almost  any  experiment  in  model  public 
houses  could  be  made  under  any  regulations  that 
the  bench  chose  to  impose  on  the  licensee.  Mr. 
Balfour  was  perfectly  right  in  telling  us  that  "  love 
of  temperance  is  the  polite  name  for  hatred  of  the 
publican  "  ;  but  what  is  the  right  name  for  love  of 
the  brewer  ?  The  fact  is  that  with  these  two 
warring  political  factions  in  the  field  the  ideal  public 
house  is  not  for  this  generation.  No  use  will  ever 
be  made  of  Section  4  under  present  conditions, 
because  whoever  applied  for  a  license,  and  however 
noble  and  beautiful  the  licensed  premises  were  to 
be,  however  ideal  the  provision  of  food,  entertain- 
ment and  drink,  and  whatever  the  guarantees  of 
good  management,  the  combined  opposition  of  the 
puritans  and  the  brewers  would  always  strive  to 
defeat  or  destroy  any  effort  to  give  the  poorer  classes 
pure  beer  in  pure  surroundings. 

The  first  step  you  have  to  take  is  to  convince  the 
unenlightened  puritan  that  the  Alehouse  is,  or  ought 

256 


THE   TWO   PUBLIC   HOUSES 

to  be,  as  worthy  a  public  house  as  the  church  or  the 
school.     This  might  be  done  by  means  of  thought- 
fully  prepared    text   books   of   English    literature. 
There  is  no  great  English  book  from  the  Bible  down- 
wards that  has  not  incidental  good  and  holy  things 
to   tell  you   of   "  The  Inn."     What  an  appetising 
volume  could  be  written  of  the  inns  and  innkeepers 
of  Charles  Dickens.     How  he  revelled  in  their  out- 
ward appearance  and  the  inward  soul  of  welcome 
which  he  found  there.     How  he  rejoiced  in  his  sane 
English  way  over  "  The  Maypole,"  "  with  its  over- 
hanging stories,  drowsy  little  panes  of  glass  and 
front  bulging  out  and  projecting  over  the  pathway," 
and  honest  John  Willet,  the  burly,  large-headed  man 
with  a  fat  face,  intended  by  providence  and  nature 
for  licensed  victualling.     Could  we  have  met  Mrs. 
Lupin  anywhere  else  than  beneath  the  sign  of  that 
"  certain   Dragon   who   swung   and   creaked   com- 
plainingly  before  the  village  alehouse  door  "  ?     Could 
Mark  Tapley  have  acquired  his  saintly  outlook  on 
life  anywhere  but  at  "  The  Blue  Dragon,"  and  are  we 
not  full  of  joy  to  find  him  returning  there  to  live 
happily    ever    afterwards    under    the    "  wery   new, 
conwivial,    and    expressive  "    sign    of    "  The    Jolly 
Tapley  ' '  ?     How  pleasant  it  is  to  assist  Crummies  and 
Nicholas  over  their  bowl  of  punch  and  the  beef- 
steak-pudding in  the  inn  on  the  Portsmouth  Road. 
Pickwick  is  a  cyclopaedia  of  inns,  each  with  its  own 
human  character,  good,  bad  and  indifferent.     Who 
has  not  stayed  at  a  "  Peacock  "  with  a  "  mantelshelf 
ornamented  with  a  wooden  inkstand,  containing  one 
stump  of  a  pen  and  half  a  wafer  :   a  road  book  and 
l.p.  257  s 


THE  LAW  AND  THE  POOR 

directory  :   a  county  history  minus  the  cover  *   and 
the  mortal  remains  of  a  trout  in  a  glass  coffin  "  ? 

One  could  run  on  in  pleasant  remembrances  of 
these  beautiful  and  delightful  places  by  the  hour, 
but  one  imagines  that  even  the  most  hardened 
political  teetotaller  must  really  know  all  about  them, 
and  perhaps  in  his  dreams  strolls  into  "  The  Marquis 
of  Granby  "  and  sips  his  glass  of  reeking  hot  pine-apple 
rum  and  water  with  a  slice  of  lemon  in  it,  and 
awakens  to  the  horrible  imagination  that  his  astral 
body  has  wandered  instinctively  into  a  manifesta- 
tion of  his  master  and  leader,  the  incomparable 
Stiggins. 

(One  very  noticeable  matter  about  any  old-world 
book  in  which  inns  are  faithfully  pictured  is  that  in 
former  days  there  was  a  real  race  of  English  inn- 
keepers, independent  licensed  victuallers,  not  mere 
brewers'  managers.  There  are  still  a  few  remaining 
with  us  who  keep  up  the  old  traditions,  but  the 
political  forces  of  brewers  and  teetotallers  have 
squeezed  this  excellent  race  of  public  servants  almost 
wholly  out  of  existence)  You  remember  the  Six- 
Jolly-Fellowship-Porters  whose  bar  was  "  a  bar  to 
soften  the  human  breast  "  with  its  "  corpulent  little 
casks  and  cordial  bottles  radiant  with  fictitious 
grapes  in  bunches  and  lemons  in  nets  and  biscuits 
in  baskets,  and  polite  beer-pulls  that  made  low  bows 
when  customers  were  served  with  beer."  How 
could  there  have  been  such  an  ideal  haven  for  the 
weary  porters  but  for  the  sole  proprietor  and 
manager,  Miss  Abbey  Potterson,  whose  dignity  and 
firmness  were  a  tradition  of  the  riverside  ? 

258 


THE  TWO   PUBLIC   HOUSES 

And  then  the  dressing  down  she  gave  Rogue 
Riderhood. 

"  But  you  know,  Miss  Potterson,"  this  was  sug- 
gested very  meekly  though,  "  if  I  behave  myself  you 
can't  help  serving  me,  miss." 

"  Can't  I !  "  said  Abbey  with  infinite  expression. 

"  No,  Miss  Potterson  ;  because  you  see  the 
law " 

"  I  am  the  law  here,  my  man,"  returned  Miss 
Abbey,  "  and  I'll  soon  convince  you  of  that  if  you 
doubt  it  at  all." 

"  I  never  said  I  did  doubt  it  at  all,  Miss  Abbey." 

"  So  much  the  better  for  you." 

And  how  much  better  not  only  for  Rogue  Rider- 
hood,  but  for  all  of  us,  if  we  could  once  again  make 
licensed  victualling  a  great  and  respectable  trade, 
and  once  again  have  a  race  of  people  managing 
businesses  that  they  could  really  take  a  pride  in. 

^The  death  of  the  old  Boniface  who  owned  his 
house  and  bought  his  beer  in  the  open  market  was 
brought  about  by  the  amalgamation  of  the  smaller 
breweries  in  the  country,  and  the  purchase  of  the 
bulk  of  the  licensed  houses  by  the  big  breweries. 
The  teetotallers  assisted  this  natural  evolution  by 
harassing  individual  owners  with  trumpery  prosecu- 
tions, opposing  alterations  and  transfers  at  licensing 
sessions,  and  surrounding  the  commercial  life  of  an 
individual  licensee  with  persecution  and  annoyance 
and  continued  threats  of  impending  ruin.  One  man 
could  not  fight  the  great  moneyed  forces  of  the 
puritans,  and  the  licensed  holder  was  glad  to  get  out 
of  an  impossible  trade  by  selling  his  interest  to  the 

259  s  2 


THE   LAW  AND  THE   POOR 

brewers.  Most  of  the  licensed  houses  in  the  country 
now  belong  in  everything  but  name  to  the  big 
brewery  companies.  Their  political  friends  have 
given  them  a  vested  interest  in  their  licenses,  and 
the  teetotallers  having  spent  large  sums  of  money 
and  wasted  much  energy  in  manoeuvring  their 
opponents  into  this  excellent  position,  now  sit 
sulkily  at  the  gates  of  it,  and  as  they  cannot  do  any 
effective  good  themselves,  take  earnest  pleasure  in 
preventing  any  enlightened  brewer  from  making 
the  conditions  under  which  he  sells  his  drink  better 
and  healthier  for  the  community. 

The  result  is  that  the  poor  man  suffers.  In  the 
whole  of  this  long  unworthy  struggle  between  the 
political  teetotaller  and  the  brewer,  the  higher 
interests  of  the  poor  and  the  real  desires  of  the  work- 
ing classes  are  scarcely  ever  mentioned — still  less 
considered.  When  he  is  in  sufficient  numbers,  and 
is  well  enough  off  to  do  so,  the  poor  man  starts  a 
club  like  his  betters,  and  no  doubt  these  are  valuable 
institutions,  but  the  club  at  the  best  does  little  for 
the  wives  and  children,  and  is  apt,  unless  the  public 
opinion  of  it  is  sound,  to  lead  a  man  astray  owing  to 
its  very  privacy.  The  puritan  ideal  is  to  drive  the 
drinker  into  dark  secret  places,  and  as  far  as  possible 
make  his  surroundings  uncomfortable  and  degrading. 
The  policy  of  the  future  is  going  to  be  to  encourage 
the  authorities — and,  if  necessary,  get  new  and  more 
up-to-date  authorities — to  replace  the  old  dark, 
dirty  puritan  pub  with  a  bright  and  enchanting 
reformed  inn,  fit  for  all  classes  of  folk,  with  music, 
entertainment,  and  all  manner  of  reasonable  refresh- 

260 


THE  TWO   PUBLIC   HOUSES 

ment,)  Nothing  can  be  done  until  we  recognise 
frankly  that  for  years  we  have  been  moving  along  a 
false  track  towards  a  mirage  castle  in  the  air,  and 
that  if  anything  useful  is  to  be  achieved  by  adminis- 
tration or  legislation  we  must  turn  our  backs  on 
the  past  and  start  along  a  new  road. 

Some  few  facts  seem  beyond  dispute.  The  mere 
cutting  down  of  licenses  has  in  itself  no  demonstrable 
effect  on  the  evil  of  the  drink  habit.  The  manners 
and  habits  of  all  classes  of  people  are  tending  to 
temperance  and  sobriety,  but  the  consumption  of 
exciseable  articles  is  increasing — last  year  there 
was  an  increase  of  £5,128,000  over  the  figures  of 
1912. 

What,  then,  is  to  be  done?  I  think  if  we  really 
want  to  do  good  in  the  matter  and  can  approach 
it  without  a  desire  to  make  dividends  out  of  brewery 
shares,  or  make  alliances  with  teetotallers  for 
political  ends,  we  shall  have  to  look  to  some  extent 
to  foreign  examples  for  guidance  in  our  difficulties. 

All  of  us  who  have  had  leisure  and  money  to  see 
something  of  foreign  countries  know  that  the  squalid 
ideal  of  the  brewer  and  the  puritan  is  not  the  only 
possible  solution  of  such  social  difficulty  as  there 
is  in  providing  reasonable  alehouses.  The  British 
public-house  is  a  national  disgrace  thrust  by  the 
rich  on  the  poor  by  means  of  law.  The  working 
man  has  no  chance  of  amending  things,  as  he  has 
no  say  in  electing  the  bosses.  Labour  leaders  short- 
sightedly favour  the  puritans'  views.  Certainly, 
our  public-houses  being  what  they  are,  it  is  a  choice 
of  evils  to  keep  out  of  them. 

261 


THE  LAW  AND  THE  POOR 

Butrwhy  should  public-houses  be  what  they  are  ? 
I  well  remember  at  Mayence  entering  a  beautiful 
public  hall — it  was  a  rainy  night,  or  the  entertain- 
ment would  have  been  out  of  doors — where  there 
was  a  fine  string  band  playing  excellent  music. 
Men,  women,  and  children  sat  at  tables  and  had 
ham  and  bread  and  cake  and  beer  and  coffee,  and 
those  who  wished  to  do  so  smoked.  There  was  no 
swilling  at  counters,  there  was  no  forced  teetotalism, 
there  was  no  drunkenness  ;  merely  domestic  liberty 
for  rational  enjoyment. 

Why  cannot  there  be  sufficient  free  trade  in  the 
beer  business  of  this  country  to  allow  an  individual 
or,  if  you  prefer  it,  an  enlightened  municipality — 
where  such  exists — to  copy  the  sane  entertainments 
of  our  German  neighbours  ?  A  working  man  and 
his  wife  and  children  spend  their  evening  listening 
to  the  band  in  a  German  beer-garden  with  as  little 
sense  of  impropriety  as  Lord  and  Lady  De  Vere  and 
the  Hon.  Gladys  De  Vere  take  their  lunch  at  the  Ritz, 
or  Alderman  and  Mrs.  Snooks  lunch  in  the  French 
restaurant  at  the  Midland. 

But  in  England  these  domestic  felicities  are  for 
the  rich  alone.  The  brewers  and  puritans  have  given 
the  poor  man  a  mean  tippling-house  to  booze  in, 
and  deny  him  anything  better.  His  wife  is  looked 
upon  as  degraded  if  she  joins  him  at  the  only  place 
where  he  can  spend  his  leisure,  and  the  rich  law- 
givers put  the  true  stamp  on  their  own  invention 
by  enacting  that  it  is  an  unfit  place  for  little  children 
to  enter. 

The  fact  is  that  the  public  house  should  be  built 

262 


THE   TWO   PUBLIC  HOUSES 

in  the  interests  of  the  public.     There  seems  no  great 
decrease  in  the  desire  to  drink  good  ale.     It  is  a 
national  taste,  and,  if  the  ale  be  good,  it  is  probably 
at  least  as  healthy,  or  healthier,  than  drinking  tea 
as  tea  is  brewed  in  cottage  homes.     But  in  the  name 
of  liberty  and  equality,  surely  if  a  man  wants  to 
drink  ale  in  moderation  he  should  be  encouraged  to 
do  so  in  bright,  pleasant  surroundings,  where  he 
can  spend  his  evenings  at  a  moderate  cost  with  his 
wife  and  children  and  meet  his  friends.     He  should 
be   allowed   to   open  such   a  place  himself  if  the 
municipality  will  not  do  it  for  him,  and  the  more 
civilised  brewers  should  be  assisted  and  encouraged 
by  the  licensing  authorities  to  build  big,  spacious 
public  houses,  where    the    poor   man  could  obtain 
similar    entertainment    to    that    provided    for    his 
wealthier  brothe^ 

There  is  something  almost  shameless  in  the  way 
in  which  the  law  of  licensing  is  stretched  to  the 
uttermost  for  the  rich  and  drawn  to  the  narrow- 
most  for  the  poor.     One  picks  up  a  paper  with  an 
account   of   the   latest   midnight   ball — the   gayest 
event  of  the  season — all  in  the  interests  of  charity, 
of  course.     What  has  become  of  that  closing  time 
which,  if  overstepped  by  the  poor,   means  police 
court  for  the  criminals  and  loss  of  license  to  the  inn- 
keeper ?     It  has  been  extended,  no  doubt,  by  a 
complacent  magistrate,  and  you  can  sit  down  to 
supper  at   midnight,   and   all  night   long   you   can 
refresh  yourself  at  American  bars  presided  over  by 
beautiful  ladies  of  the  chorus.     One  gathers  there 
will  be  no  closing  time  at  all,  as  breakfasts  will  be 

263 


THE   LAW   AND   THE   POOR 

served  from  three  o'clock.  In  the  intervals  of  the 
dancing  there  are  to  be  famous  music-hall  turns. 
At  some  of  these  fashionable  dances  valuable 
prizes  are  given,  at  others  these  fall  to  lucky  ones 
by  some  form  of  lot — not  lottery,  of  course,  for  that 
would  be  against  the  law,  and  these  entertainments 
are  arranged  by  eminent  leaders  of  society  who  are 
always  within  the  law — well  within  it. 

It  would  be  ill  mannered  to  endeavour  to  stop  so 
much  innocent  enjoyment  of  a  class  that  has  so 
little  real  pleasure  by  enforcing  the  licensing  and 
other  laws  to  interfere  with  their  amusements. 
On  the  contrary,  we  should  seek  to  use  their  example 
and  better  our  own  licensing  circumstances  by  an 
appeal  to  their  precedent.  If  it  is  good  for  leaders 
of  society  to  sing  and  dance  and  sup  after  hours  in 
their  public  houses,  why  should  not  the  rest  of 
society  be  allowed  to  follow  their  example  and 
have  their  own  beanfeasts  in  ample  public  houses 
undisturbed  by  the  law  ?  Of  course  there  must  be 
a  charity  !  Give  me  an  extension  of  license  in  the 
Old  Kent  Road  and  I  will  provide  plenty  of  charities 
and  plenty  of  lads  and  lasses  ready  to  sing  Mr. 
Adrian  Ross's  refrain  : 

Care  has  gone  to  sleep  till  morning, 
Night's  the  noon  of  joy. 

For  the  young  people  of  the  poor  are  just  as  fond 
of  a  spree  as  those  of  the  rich,  and  quite  as  ready  to 
be  charitable  to  the  extent  of  their  means  after  the 
same  fashion. 

There  is  an  excellent  letter  of  Charles  Kingsley's 
written  to  the   "  Christian   Socialist  "   some  sixty 

264 


THE  TWO   PUBLIC   HOUSES 

years  ago  that   might    well    be    circulated  among 
licensing  benches  by   the  Home  Office — though   I 
believe  it  is  considered  officially  to  be  bad  economy 
to   address   printed  common   sense   to   the   unpaid 
magistracy.     Naturally,    autocrats   resent   or   scoff 
at   advice   that   has   no   sanction   behind   it.     The 
teetotal  attitude  of  mind  and  the  quarrels  it  aroused 
very    properly    disgusted    Kingsley.     He    took    no 
pleasure  in  hearing  the  water  drinkers  calling  the 
beer  drinkers  "  flabby,  pot-bellied,  muddle-headed, 
disgusting    old    brutes,"    and    the    beer    drinkers 
retorting   on   the   water   drinkers   that   they   were 
"  conceited  puritans  and  manichees  and  ascetics." 
He  saw  that  the  quarrel  would  not  do  any  good  to 
the  cause  of  temperance,  and  in  his  honest  enthusiasm 
blurted  out  the  truth,  the  whole  truth  and  nothing 
but  the  truth  about  his  teetotal  friends,  like  the  good 
old  Christian  warrior  that  he  was. 

"  On  my  honour,"  he  writes,   "  unless  the  tee- 
totallers show  a  more  humble,  gentle  and  tolerant 
spirit  than  is  common  among  them  I  shall  advise 
beer  drinkers    like   myself    and    Mr.  Hughes  (Tom 
Brown  of  the  Schooldays)  either  to  flee  the  country, 
or  if  their  cloth  allows  them,  which  mine  does  not, 
prove  by  self-defence  that  a  man  can  value  his  beer, 
and  thank  God  for  it  with  a  good  conscience,  as 
tens  of  thousands  do  daily  and  yet  feel  as  tight 
about  the  loin  and  as  wiry  in  the  arm  as  any  tee- 
totaller in   England.     Honestly,    I    am    jesting    in 
earnest.     I    regard    this    teetotal    movement    with 
extreme    dread.     I    deeply    sympathise    with    the 
horror  of  our  English  drunkenness  that  produced  it. 

265 


THE   LAW   AND   THE   POOR 

I  honour  every  teetotaller  as  I  honour  every  man 
who  proves  by  his  action  that  he  possesses  high 
principle    and    manful    self-restraint.  .  .  .  That    a 
man  should  be  a  teetotaller  rather  than  a  drunkard 
needs  no  proof.     Also  that  a  man  should  go  about 
in  a  sack  rather  than  be  a  fop  and  waste  time  and 
money  on  dress.     But  I  think  temperance  in  beer, 
like  temperance  in  clothes,  is  at  once  a  more  rational 
and  a  higher  virtue  either  than  sackcloth  or  water." 
This  was  true  doctrine  then  and  is  true  doctrine 
to-day,  and  the  sad  fact  that  it  fell  on  deaf  ears 
and  is  still  but  half  understood  is  the  reason  of  our 
backwardness  in  licensing  reform  and  the  presence 
of  the  degrading  public  house  which  the  law  cherishes 
and  protects. 

Only  the  other  day  in  a  country  town,  on  the 
application  for  a  license,  the  police  superintendent 
objected  to  the  house  on  the  ground  of  the  small  bar 
accommodation.  His  Grace  the  Duke,  who  happened 
to  be  in  the  chair,  wanted  to  know  if  the  proprietor 
of  the  house  would  prepare  a  plan  for  enlarging  the 
bar  accommodation.  What  could  the  proprietor  do  ? 
The  police  wanted  to  herd  the  drinkers  into  a  bar 
so  that  they  could  pop  their  heads  in  and  see  them 
all  at  once  without  any  trouble,  the  bench  wanted 
to  do  what  the  police  wanted  them  to  do.  The 
interests  of  the  poor,  the  cause  of  temperance,  the 
betterment  of  the  social  life  of  the  people  were 
as  irrelevant  to  the  case  as  the  flowers  that  bloom  in 
the  spring. 

At  many  a  licensing  session,  too,  you  will  listen  to 
solemn  warnings  by  the  superintendent  of  police 

266 


THE  TWO   PUBLIC   HOUSES 

against  the  public  being  allowed  to  amuse  them- 
selves with  penny-in-the-slot  machines  or  gramo- 
phones or  parlour  quoits  or  the  like.  Amusement  is 
regarded  with  a  natural  horror  by  the  puritan,  and 
the  friends  of  the  brewer  see  in  it  a  dangerous 
alternative  to  the  duty  of  the  working  man  to  drink. 
One  police  authority  threatened  the  license  holders 
"  that  if  they  continued  to  allow  these  machines  to 
be  used  in  their  licensed  premises  they  did  so  at  the 
risk  of  prosecution  for  allowing  gaming."  The 
gaming  laws  of  England  with  their  wholesale  per- 
mission of  gambling  in  one  place  and  their  retail 
persecution  of  gambling  in  another  place,  and  their 
incapacity  to  know  when  a  place  is  not  a  place  or 
how  otherwise,  are  a  public  laughing  stock,  but  it  is 
a  grievous  thing  that  they  should  be  dragged  out  to 
drive  a  little  harmless  amusement  out  of  the  dingy 
tavern  which  is  the  only  public  institution  the  poor 
man  has  for  rest  and  recreation. 

As  a  matter  of  fact,  these  machines,  if  they  are 
used  for  gambling,  are  generally  used  to  see  who  shall 
pay  for  drinks.  In  some  bars  in  foreign  countries 
a  dice-box  is  always  handy  for  this  purpose.  Three 
or  four  friends  come  in  and  throw,  the  loser  pays  for 
drinks,  and  all  are  satisfied,  and  having  had  their 
drink  they  go.  I  am  not  upholding  the  custom  as 
ideal,  but  I  see  little  harm  in  it.  In  England,  if 
three  or  four  enter  a  public  house,  the  etiquette 
in  many  places  is  for  one  to  stand  drinks,  and  for 
the  rest  in  turn  to  offer  to  stand  another  round — 
an  offer  seldom  refused — and  for  the  rounds  to 
continue  until  each  has  stood  his  corner.     I  would 

267 


THE  LAW  AND  THE   POOR 

not  go  so  far  as  to  insist  on  a  compulsory  dice-box 
in  every  bar,  but  I  fancy  on  the  whole  that  it  is  an 
agent  of  temperance. 

(Every  one  who  has  given  any  thought  to  temper- 
ance as  opposed  to  teetotalism,  is  agreed  that  what 
is  wanted  is  the  gradual  elimination  of  bars  and 
counters  and  the  substitution  of  chairs  and  tables 
and  big  open  rooms.     In  these  must  be  provided 
tea,  coffee,  and  all  the  usual  lighter  refreshments 
that  you  find  in  the  better-class  restaurants  and 
hotels.     In  a  big  West  End  hotel  you  find  every 
afternoon  that  the  lounge  is  laid  out  for  afternoon 
tea.     I  do  not  see  why  a  working  man  and  his  wife 
should  not  have  their  tea  in  a  lounge  in  their  public 
house.     I  cannot  understand  why,  if  two  friends 
after  a  day  in  the  workshop  want  to  have  a  friendly 
chat,  they  cannot  find  an  institution  where  one  can 
have  his  cup  of  tea  and  a  muffin,  and  the  other  his 
glass  of  ale  and  a  sandwich,  and  both  sit  at  one 
table  in  a  spacious  room  with  comfortable  surround- 
ings, and  if  they  do  not  heartily  dislike  it  a  gramo- 
phone to  play  tunes  to  then^    That  is  impossible 
of  attainment  as  the  law  now  stands.     If  a  million- 
aire was   to  offer  to  build  in   Manchester  a  dozen 
working-men's  cafes  on  the  continental  plan  where 
any  decent   citizen  could  be  pleased  to   take  his 
wife    and    children,    as    our    French    and    German 
neighbours   do,  the   brewers,    the   teetotallers,  the 
police,  the  licensing  magistrates  and  the  law  would 
see  that  it  was  not  permitted. 

And  yet  we  know  by  experiment  that  in  proper 
surroundings,  reasonable  facilities  for  refreshment 

268 


THE  TWO   PUBLIC  HOUSES 

do  not  lead  to  drunkenness.  In  the  Manchester 
Exhibition  of  1887,  it  being  a  wonderfully  fine 
summer,  and  licenses  having  been  freely  given  for 
the  occasion,  there  was  an  opportunity  of  testing 
whether  under  proper  conditions  opportunity  led  to 
excess.  I  never  heard  that  it  did.  In  the  Franco- 
British  Exhibition  where  reasonable  facilities  of  re- 
freshment were  also  given,  it  is  said — and  I  have 
no  doubt  truly  said — that  though  eight  or  nine 
million  visitors  passed  through  the  turnstiles,  yet 
there  was  not  a  single  case  of  drunkenness. 

The  problem  is  really  a  simple  one,  if  we  could 
only  get  administrators  and  legislators,  but  especially 
the  former,  to  look  at  it  in  the  interest  of  the  man 
in  the  street.  To  the  big  brewery  company  beer  is 
an  effluent,  and  the  public  house  is  the  conduit  pipe 
through  which  they  pour  it  into  the  public  stomach. 
They  have  obviously  no  interest  in  ideal  public 
houses — and  why  should  they  ?  They  are  business 
men  on  business  bent.  The  teetotallers,  on  the 
other  hand,  regard  the  drinking  of  beer  as  a  sin,  and 
any  public  house  as  the  house  of  the  Devil.  Why 
should  they  help  the  Devil  to  make  his  house  sweet 
and  attractive,  and  make  the  path  easier  for  the 
poor  sinner  who  thirsts  after  beer  ?  At  present  the 
average  licensing  bench  consists  of  "  half  and  half  " 
— to  use  a  trade  term — of  these  elements.  If  there 
happen  to  be  a  few  cranks  on  the  bench  who  share 
the  feather-headed  notions  set  down  in  this  chapter, 
they  can  always  be  out-voted  by  a  combination 
of  brewer  and  teetotaller.  And  for  my  part  I  think 
we   shall   stick   to   our  glorious   institution   of   the 

269 


THE  LAW  AND   THE   POOR 

"  tied-house  "  just  as  long  as  the  working  man 
intends  to  allow  us  and  no  longer. 

When  reformed  public  houses  are  taken  up  by 
the  men  who  use  the  public  house,  and  when  labour 
demands  something  better,  the  demand  will  be 
met.  For  the  teetotaller  is  nothing  if  not  political, 
and  when  he  sees  where  the  votes  are,  and  not  before, 
he  will  begin  to  see  the  error  of  his  ways. 

Meanwhile  it  will  do  him  no  harm  to  study  the 
statistics  such  as  they  are,  and  discover  that  the 
number  of  licenses  in  a  district  has  nothing  to  do 
with  the  amount  of  drunkenness  therein,  and  to 
look  back  on  the  past  history  of  the  public  house 
and  recognise  that  he  has  for  many  years  been  the 
friend  and  ally  of  the  undesirable  brewer.  The 
good  citizen's  policy  should  be  the  provision  of 
pure  ale  in  wholesome  surroundings,  thereby  freeing 
the  working  class  from  the  tyranny  of  the  public 
house.  To  the  teetotallers  who  hinder  such  a  policy 
I  can  only  repeat  Charles  Kingsley's  message : 
"And  I  solemnly  warn  those  who  try  to  prevent 
it  that  they  are,  with  whatsoever  good  intentions, 
simply  doing  the  Devil's  work." 


270 


CHAPTER   XIV 

the  two  public  houses 

2.  The  Workhouse. 

Pauperism  is  the  general  leakage  through  every  joint  of  the 
ship  that  is  rotten.  Were  all  men  doing  their  duty,  or  even 
seriously  trying  to  do  it,  there  would  be  no  Pauper. 

Pauperism  is  the  poisonous  dripping  from  all  the  sins,  and 
putrid  unveracities  and  God-forgetting  greedinesses  and  devil- 
serving  cants  and  Jesuitisms,  that  exist  among  us.  Not  one  idle 
Sham  lounging  about  Creation  upon  false  pretences,  upon  means 
which  he  has  not  earned,  upon  theories  which  he  does  not 
practise,  but  yields  his  share  of  Pauperism  somewhere  or  other. 
Thomas  Carlyle  :  "Latter-day  Pamphlets," 
"  The  New  Downing  Street." 

The  current  cant  of  the  day  is  that  the  alehouse 
leads  to  the  workhouse.  From  an  architectural  and 
hygienic  point  of  view  they  have  much  in  common, 
and  perhaps  when  one  comes  to  spend  one's  last 
years  amid  the  unloveliness  and  official  squareness 
and  coldness  of  the  workhouse  one  will  be  able  to 
look  back  with  a  sense  of  grateful  pleasure  to  the 
more  natural  squalor  of  the  alehouse.  It  is  a 
zoological  fact  that  the  human  pauper,  escaped  for 
the  day  from  a  workhouse,  makes  like  a  homing  bird 
for  the  alehouse,  wherefrom  we  may  draw  the  conclu- 
sion that  the  public  for  whom  our  two  public  houses 

271 


THE   LAW  AND  THE   POOR 

are  provided  by  an  intelligent  State  prefer  the 
alehouse  as  the  lesser  abomination  of  the  two. 

I  often  wonder  if  there  is  any  nation  in  the  world 
that  possesses  an  appetite  equal  to  that  of  our  own 
people  for  Royal  Commissions  and  reports.  I  admit 
that  I  have  the  craving  strongly  myself — not  to  sit 
upon  Commissions,  for  I  am  a  working  man  and  the 
amusement  is  one  for  Bishops,  Law  Lords,  philan- 
thropists and  the  leisured  classes — but  I  buy  the 
reports  when  they  come  out  and  sometimes  read 
them — or  some  of  them — or  some  part  of  them — and 
marvel  at  the  patience  and  energy  and  research  that 
have  gone  to  the  making  of  them,  and  sigh  over  the 
pity  of  it  and  the  heart-breaking  inutility  of  the 
whole  business. 

Here  is  the  report  of  the  Royal  Commission  on  the 
Poor  Laws,  1909.  The  blue  cover  of  my  copy  is 
already  turning  grey  with  old  age,  the  pencil  marks 
I  made  in  the  margin  when  I  read  it  five  years  ago 
remind  me  of  the  splendid  reforms  that  spread  them- 
selves out  in  its  pages  and  made  one  feel  that  after 
all  the  world  was  a  better  affair  than  one  had 
hitherto  believed.  This  report  is  indeed  literally  a 
monument  of  industry.  It  sat  from  1905  to  1909. 
There  are  over  twelve  hundred  pages  in  the  report 
itself,  which  you  can  buy  for  the  trumpery  sum 
of  five  and  six.  The  evidence  of  it  is  contained 
in  many  volumes,  and  if  your  library  is  large 
enough  and  you  can  afford  to  pay  the  price  of  a 
large  paper  set,  you  would  have  reading  enough 
for  the  rest  of  your  natural  life.  And  what  has 
come  of   it    all  ?     Practically  nothing.     It  is  not 

272 


THE   TWO   PUBLIC   HOUSES 

to  be  supposed  that  either  the  report  or  the  evidence 
has  ever  been  read  and  studied  by  our  ministers  and 
rulers.     A   few    magazine   and   newspaper   articles 
have  been  made  of  it,  then  perhaps  a  book  or  two 
are  written  on  the  subject,  the  origin  of  which  you 
can  trace  to  the  report,  and  after  that  gradually 
the  thing  sinks  by  its  own  cumbrous  weight  into  the 
dead  limbo  of  forgotten  state  papers.     Yet  if  there 
was  a  problem  called  the  reform  of  the  Poor  Law  in 
1905  worthy  of  the  consideration  of  the  good  men 
and  women  who  gave  up  a  large  slice  of  their  lives 
to  working  at  it  surely  in  1914  there  is  still  such  a 
problem,  and  some  of  it  is  at  least  as  urgent  as  the 
questions  over  which  our  political  pastors  wrangle 
and  fight  with  such  splendid  energy.     To  write  an 
essay  on  the  law  and  the  poor  in  relation   to   the 
relief  of  distress  would  be  to   traverse  the  whole 
ground  of  this  famous  report,  but  for  my  own  part  I 
only  want  to  call  attention  to  an  institution  typical 
of  all  the  faults  and  errors  of  the  Poor  Law — the 
workhouse. 

For  if  the  rich  have  by  their  laws  made  a  mess  of 
the  alehouse,  what  about  the  other  public-house — the 
workhouse  ?  When  you  have  no  money  to  enable 
you  to  take  your  ease  at  your  inn  the  only  other 
hostelry  open  for  you  and  your  wife  and  children  is 
the  Poor  House. 

If  there  is  one  subject  that  has  a  more  confused 
melancholy  legal  history  than  another  it  is  the 
story  of  the  workhouse.  No  doubt  much  has  been 
done  and  something  is  doing,  but  it  is  difficult  to  see 
the  real  metal  of  the  reformer's  work  for  the  great 

L.P.  273  T 


THE   LAW  AND  THE   POOR 

heaps  of  Poor  Law  dirt  that  our  forefathers  have  left 
for  us  to  clear  away.  For  years  the  great  English 
General  Mixed  Workhouse  has  been  looking  for 
trouble.  It  has  not  a  friend  even  in  the  Local 
Government  Board  Office,  and  it  has  been  condemned 
by  all  right-minded  men  and  women  time  out  of 
mind  as  an  abomination  of  desolation  standing 
where  it  ought  not.  Yet  there  it  is.  A  blockhouse, 
invented,  built,  and  governed  by  blockheads,  or  at 
least  beings  with  wooden  blocks  instead  of  human 
hearts.  It  is  mournful  to  read  the  Poor  Law  history 
of  the  last  eighty  years  and  to  learn  how  little  we 
have  done  to  dry  the  tears  of  the  widows  and  orphans 
who  become,  through  folly,  misfortune,  or  ill- 
regulated  industry,  the  wards  of  the  State. 

And  to  understand  how  such  an  institution  came 
into  our  midst,  it  is  necessary  to  look  back  a  bit 
upon  the  natural  history  of  our  Poor  Law. 

Whatever  our  failings  may  be  as  practical  states- 
men capable  of  translating  philanthropic  theory  into 
practical  statutory  right  action,  no  one  can  deny 
we  are  a  great  people  for  ideals.  And  the  ideal  of 
our  Poor  Law  has  from  earliest  days  been  excellent. 
Coke  in  his  Institutes  tells  us  that  it  was  ordained 
by  Kings  before  the  Conquest  that  the  poor  should 
be  sustained  by  parsons,  rectors,  and  parishioners, 
"  so  that  no  one  should  die  from  lack  of  sustenance." 
That  was,  and  still  is,  the  ideal.  No  citizen  is  to 
die  from  lack  of  sustenance,  and  yet  surely  since  the 
Conquest,  and  even  recently  in  our  own  time,  some 
perverse  person  has  escaped  the  careful  eyes  of  the 
parsons,  rectors,  and  parishioners,  and  crept  away 

274 


THE  TWO   PUBLIC  HOUSES 

to  an  obscure  corner  there  to  die  of  hunger  against 
the  ordinance  of  Kings  in  that  case  made  and  pro- 
vided. 

Coke  got  this  phrase  from  Andrew  Horn,  the 
author  or  editor  of  that  excellent  treatise  "  La 
Somme  appelle  Mirroir  des  Justices,"  which  he 
must  have  compiled  somewhere  before  1328,  though 
it  was  first  printed  in  1624.  Horn's  "  Mirror  of  Jus- 
tices," is  not,  I  believe,  regarded  with  great  reverence 
by  the  learned  as  a  law-book,  but  Coke  enjoyed  it 
and  quoted  it  with  approval,  and  whether  or  not 
some  of  its  phrases  were  ever  sound  law  I  dare  not 
express  an  opinion,  but  I  will  vouch  for  the  excellence 
of  Andrew's  sympathies. 

In  writing  of  the  criminal  law  he  tells  us  that 
"  the  poor  man  who  to  escape  starvation  takes 
victuals  to  sustain  his  life,  or  a  garment  to  prevent 
death  by  cold,  is  not  to  be  adjudged  to  death  if 
he  had  no  power  to  buy  or  to  borrow,  for  such  things 
are  warranted  by  the  law  natural." 

I  suppose  it  is  doubtful  if  this  was  ever  good 
common  law  to  be  acted  upon  in  all  criminal  courts, 
but  one  admires  old  Andrew  for  setting  it  down 
and  is  glad  to  learn  that  even  in  the  beginning  of 
the  fourteenth  century  there  were  writers  on  law 
who  were  trying  to  mitigate  the  rigour  of  the  law 
in  favour  of  the  poor.  They  may  not  have  actually 
stated  what  the  law  exactly  was,  but  they  had  shrewd 
ideas  at  the  back  of  their  minds  as  to  what  it  ought 
to  be.  If  they  confused  the  two  themselves  at 
times,  and  this  confused  other  learned  ones  in  after 
times,  maybe  no  one  has  been  much  the  worse  for  it. 

275  t  2 


THE   LAW  AND   THE   POOR 

And  when  Horn  laid  down  in  his  quaint  dog  French 
that  "  Les  povres  fusent  sustenuz  par  les  persones 
rectours  des  eglises  eparlesparoisiens,"  I  fear  he  was 
writing  of  what  ought  to  be  rather  than  what  was 
the  existing  common  law  of  the  relief  of  the  poor. 

I  am  not  at  all  sure  that  leaving  the  matter  in 
the  hands  of  parsons  and  parishioners  has  not  been 
the  cause  of  most  of  the  failure  of  the  Poor  Law. 
If  you  have  studied  parsons  and  parishioners  as  a 
class,  you  do  not  find  them  peculiarly  desirous  of 
providing  sustenance  for  others.  Queen  Elizabeth 
— a  very  practical  lady,  much  thought  of  by  parsons 
and  parishioners — was  evidently  of  the  opinion  that 
you  were  asking  too  much  for  the  poor  when  you 
said  that  they  should  have  sustenance  for  nothing. 
She  it  was  who  enacted  that  in  return  for  the  ideal 
Saxon  sustenance,  which  was  apparently  to  be  freely 
given,  the  poor  person  was  now  to  give  his  work. 
Churchwardens  and  overseers,  instead  of  giving 
free  relief  had  power  to  set  to  work  children  whose 
parents  could  not  maintain  them,  and  make  their 
parents  work  too  if  necessary.  This  was  the 
beginning  of  the  system  that  made  you  chargeable 
on  the  parish,  and  gave  the  parish  a  right  to  make 
you  work  off  some  of  your  chargeability. 

In  the  eighteenth  century  came  the  interesting 
and  disastrous  experiment  of  indiscriminate  out- 
door relief.  The  farmer  parishioner  discovered  he 
could  get  a  cheaper  labourer  by  making  his  fellow 
parishioners  pay  some  of  the  wages  in  out-door 
relief.  A  pauper  was  a  better  tenant  to  have, 
since  the  rent  was  paid  out  of  the  poor  rates,  a 

276 


THE   TWO   PUBLIC   HOUSES 

bastard  child  was  an  asset  in  a  household,  and  in 
1 82 1  overseers  are  known  to  have  shared  out  the 
pauper  labourers  among  themselves  and  their 
friends  and  paid  for  the  labour  wholly  out  of  the 
poor-rate. 

The  scandals  that  had  arisen  led  to  the  reform  of 
the  Poor  Law  in  1834,  which  placed  the  administra- 
tion in  the  hands  of  Commissioners  who  were  to  see 
that  the  law  was  carried  out,  and  by  a  natural 
swing  of  the  pendulum  they  turned  from  an  indis- 
criminate doling  out  of  rates  to  favoured  paupers  to 
a  system  whereby  the  labourer  was  to  find  that  the 
parish  was  his  hardest  taskmaster  so  as  to  induce 
him  to  keep  away  from  the  overseers  and  make 
parish  relief  his  last  and  not  his  first  resource.  The 
ideal  that  the  Commissioners  stood  out  for  was  that 
no  relief  whatever  was  to  be  given  to  able-bodied 
persons  or  to  their  families  otherwise  than  in  well- 
regulated  workhouses.  This  was  the  beginning  of 
the  workhouse  system  which  really  made  the  work- 
house a  kind  of  prison  for  those  who  could  not  find 
work  outside. 

A  great  deal  has  been  done  since  then,  and  especi- 
ally in  recent  years,  to  mitigate  the  lot  of  the  poor. 
Old  Age  Pensions,  Labour  Exchanges,  Medical 
Insurance,  Unemployment  Insurance  and  the  en- 
lightened administration  of  some  of  the  better 
Boards  of  Guardians  have  made  great  inroads  on 
the  negative  inhumanity  of  the  workhouse  system. 
But  unless  it  be  in  some  of  the  more  vigorous 
northern  centres  Poor  Law  work  and  Poor  Law  elec- 
tions rouse  but   little  enthusiasm.     There  are   no 

277 


THE  LAW  AND  THE  POOR 

doubt  many  men  and  women  who  enter  into  the 
service  of  the  Poor  Law  from  noble  motives  and  do 
useful  work,  but  the  good  they  can  do  is  very 
limited.  The  Central  Authority  seems  to  have  no 
very  settled  ideals,  different  boards  run  different 
policies,  some  hanker  after  the  flesh  pots  of  labour 
cheapened  by  indiscriminate  relief,  others  clamour 
for  lower  rates  obtained  by  the  inhumanity  of  not 
allowing  anything  but  indoor  relief.  The  guardians 
whose  voices  are  raised  only  in  the  interests  of  the 
poor  are  scarcely  heard  by  those  who  are  clamouring 
for  a  lowering  of  the  rates. 

One  thing  all  reformers  seem  to  be  agreed  upon, 
and  that  is  that  the  General  Mixed  Workhouse  with 
good,  bad,  and  indifferent  men,  women,  and  children 
herded  together  within  its  four  walls  is  an  abomina- 
tion of  desolation.  Maybe  it  did  its  work  in  the 
past  as  part  of  the  evolution  of  the  Poor  Law, 
dragging  it  out  of  a  slough  of  corrupt  and  unwhole- 
some administration,  but  a  time  has  surely  come 
when  we  can  apply  more  scientific  remedies  to 
prevent  the  recurrence  of  such  scandals,  and  there 
is  no  longer  a  necessity  to  sacrifice  the  lives  and 
happiness  of  decent  men,  women,  and  children  by 
the  continuance  of  our  workhouse  system. 

For  what  is  a  General  Mixed  Workhouse  ?  It  is  an 
institution  that  has  been  officially  condemned  since 
the  Commissioners  of  1834  went  tneir  rounds  and 
made  their  report.  Crowded  together  in  the  work- 
houses of  that  day  they  found  a  number  of  paupers 
of  different  type  and  character,  neglected  children 
under  the  care  of  any  sort  of  pauper  who  would 

278 


THE   TWO   PUBLIC   HOUSES 

undertake  the  task,  bastard  children,  prostitutes, 
blind  persons,  one  or  two  idiots,  and  an  occasional 
neglected  lunatic.  There  was  enough  humanity 
among  the  Commissioners  of  eighty  years  ago  to 
see  that  what  was  urgently  necessary  was  classifica- 
tion ;  the  aged  and  the  really  impotent  wanted  care, 
peace,  and  comfort,  the  children  wanted  nursing, 
supervision,  and  education,  hard  working  men  and 
women  in  misfortune  did  not  want  to  live  in  close 
proximity  to  the  "  work  shy  "  and  the  "  ins  and 
outs."  "  Each  class,"  says  the  Report,  "  should 
receive  an  appropriate  treatment  ;  the  old  might 
enjoy  their  indulgences  without  torment  from  the 
boisterous  ;  the  children  be  educated  and  the 
able-bodied  subjected  to  such  courses  of  labour  and 
discipline  as  will  repel  the  indolent  and  the  vicious." 
This  was  reported  of  the  workhouse  in  1834,  this  is 
again  reported  of  the  workhouse  in  1909  ;  there 
seems  every  reason  to  believe  that  it  will  be  once 
more  reported  of  the  workhouse  in  2000. 

Of  course,  many  things  are  better  to-day  than  they 
were  eighty  years  ago.  A  different  standard  of 
sanitation  and  hygiene  has  arisen  throughout  the 
country  and  some  of  it  has  found  its  way  into  the 
workhouse.  We  have  Poor  Law  schools  and  Poor 
Law  infirmaries  that  were  unthought  of  in  those 
days  and,  as  a  whole,  our  buildings  are  clean  and 
healthy ;  there  is  no  ill-treatment  in  them  as  there 
was  in  the  days  of  Bumble  ;  food,  clothing  and 
warmth  are  at  least  sufficient  ;  and  in  communities 
where  there  is  an  exceptional  Board  and  a  superior 
master  and   matron   much   is  done   to   hinder  the 

279 


THE  LAW  AND  THE  POOR 

obvious  evils  of  promiscuity.  Nevertheless,  the 
evil  overshadows  the  good,  for  it  is  the  institution 
itself — the  workhouse — that  is  as  radically  unwhole- 
some and  unfit  to-day  as  it  was  in  1834. 

The  evils  of  promiscuity  cannot  be  exaggerated. 
In  the  larger  workhouses  male  and  female  inmates 
dine  together,  work  together  in  kitchens  and 
laundries  and  in  the  open  yards  and  corridors,  with 
results  that  are  obvious.  In  a  fortuitous  assembly 
of  such  people  the  lowest  common  denominator  of 
morality  is  easily  adopted  as  the  standard.  What  a 
terrible  place  is  a  General  Mixed  Workhouse  to  which 
to  send  children  or  young  people.  One  cannot  read 
some  of  the  passages  in  the  report  for  which  Mrs. 
Sidney  Webb  and  her  colleagues  were  responsible 
without  shuddering  at  our  own  guiltiness  and  folly  as 
ratepayers  for  allowing  these  things  to  be  done  in  our 
name.  "  No  less  distressing,"  they  say,  "  has  it  been 
to  discover  a  continuous  intercourse  which  we  think 
must  be  injurious  between  young  and  old,  innocent 
and  hardened.  In  the  female  dormitories  and  day 
rooms  women  of  all  ages  and  of  the  most  varied 
characters  and  conditions  necessarily  associate 
together  without  any  kind  of  restraint  on  their 
mutual  intercourse.  There  are  no  separate  bed- 
rooms ;  there  are  not  even  separate  cubicles.  The 
young  servant  out  of  place,  the  prostitute  recovering 
from  disease,  the  feeble-minded  woman  of  any  age, 
the  girl  with  her  first  baby,  the  unmarried  mother 
coming  in  to  be  confined  of  her  third  or  fourth 
bastard,  the  senile,  the  paralytic,  the  epileptic,  the 
respectable  deserted  wife,  the  widow  to  whom  out- 

280 


THE   TWO   PUBLIC  HOUSES 

door  relief  has  been  refused,  are  all  herded  indis- 
criminately together.  We  have  found  respectable 
old  women  annoyed  by  day  and  by  night  by  the 
presence  of  noisy  and  dirty  imbeciles  ;  idiots  who  are 
physically  offensive  or  mischievous,  or  so  noisy  as 
to  create  a  disturbance  by  day  or  night  with  their 
howls,  are  often  found  in  Workhouses  mixing  with 
others,  both  in  the  sick  wards  and  in  the  body  of  the 
house." 

This  picture  is  foul  and  detestable  enough,  but  it 
is  perhaps  in  the  treatment  of  children  that  the 
workhouse  system  causes  the  greatest  unintentional 
cruelty.  There  are  some  15,000  children  actually 
living  in  General  Mixed  Workhouses.  A  large 
proportion  of  these  have  no  separate  sick  ward  for 
children,  and  no  quarantine  wards  if  there  should  be 
such  a  thing  as  an  outbreak  of  measles  or  whooping 
cough.  Young  children  are  to  be  found  in  bed,  with 
minor  ailments,  next  to  women  of  bad  character  under 
treatment  for  contagious  disease,  whilst  other  women 
in  the  same  ward  are  in  advanced  stages  of  cancer 
and  senile  decay.  Children  come  in  daily  contact 
with  all  the  inmates,  even  the  imbeciles  and  feeble 
minded  are  to  be  found  at  the  same  dining  table  with 
them.  In  this  huge  State  nursery  the  nurses  are 
almost  universally  pauper  inmates,  many  of  them 
more  or  less  mentally  defective.  A  medical  In- 
spector's report  in  1897,  stated  that  in  no  less  than 
"  sixty  four  Workhouses  imbeciles  or  weak-minded 
women  are  entrusted  with  the  care  of  infants."  One 
witness  states  that  she  has  "  frequently  seen  a 
classed  imbecile  in  charge  of  a  baby."     In  the  great 

281 


THE  LAW  AND  THE   POOR 

palatial  workhouses  of  London  and  other  large  towns 
the  Commissioners  found  that  "  the  infants  in  the 
nursery  seldom  or  never  got  into  the  open  air." 
They  found  the  nursery  frequently  on  the  third  or 
fourth  story  of  a  gigantic  block,  often  without 
balconies,  whence  the  only  means  of  access,  even  to 
the  workhouse  yard,  was  a  lengthy  flight  of  stone 
steps  down  which  it  was  impossible  to  wheel  a  baby 
carriage  of  any  kind.  There  was  no  staff  of  nurses 
adequate  to  carrying  fifty  or  sixty  infants  out  for 
airing.  "  In  some  of  these  workhouses,"  they 
write,  "  it  was  frankly  admitted  that  the  babies 
never  left  their  own  quarters,  and  the  stench  that 
we  have  described,  during  the  whole  period  of  their 
residence  in  the  workhouse  nursery." 

Seventy  years  have  passed  since  it  was  written, 
and  yet  the  "  Cry  of  the  Children  "  has  as  much 
meaning  for  us  as  it  had  for  our  grandfathers. 

The  young  lambs  are  bleating  in  the  meadows, 

The  young  birds  are  sleeping  in  the  nest, 
The  young  fawns  are  playing  with  the  shadows, 

The  young  flowers  are  blowing  toward  the  west — 
But  the  young,  young  children,  O  my  brothers, 

They  are  weeping  bitterly  ! 
They  are  weeping  in  the  playtime  of  the  others, 
In  the  country  of  the  free. 

And  I  am  far  from  suggesting  that  all  this  evil  is 
the  result  of  any  personal  inhumanity  of  Boards  of 
Guardians,  Masters  or  Matrons  or  of  their  Inspectors 
and  Governors  in  higher  places.  It  is  a  matter  in 
which  each  individual  citizen  must  bear  his  share  of 
blame  for  he  knows  it  to  exist,  and  he  knows  that 
he  can  have  it  altered  if  he  cares  to  put  his  hand  deep 

282 


THE   TWO   PUBLIC  HOUSES 

enough  into  his  pocket,  or  if  he  will  forgo  some  of 
the  political  luxuries  dear  to  his  party  heart  and 
give  up  the  expenditure  on  them  to  the  betterment 
of  little  children. 

Other  European  countries  have  managed  to 
classify  their  poor.  In  France  the  medical  patients 
go  to  hospitals,  the  infirm  aged  poor  have  special 
"  hospices,"  and  the  blind  and  the  idiots  are 
separated  from  the  little  children,  each  having  their 
appropriate  establishments.  Of  course  we  take  a 
great  and  to  some  extent  justifiable  pride  in  our  Local 
Government  institutions,  but  as  the  world  becomes 
more  complex  and  difficult,  it  is  beginning  to  be 
seen  that  backward  and  less  intelligent  districts  do 
not  get  the  full  value  out  of  legislation  and  rates 
that  a  progressive  and  vigorous  district  obtains.  It 
is  one  thing  to  pass  an  Act  of  Parliament  and  another 
thing  to  get  a  local  elective  body  to  administer  it 
intelligently.  If  we  could  level  up  the  worst 
administration  of  Guardians  to  the  best,  a  great  deal 
would  be  done,  but  there  is  no  manner  of  doubt  that 
the  State  ought  to  impose  a  time  limit  on  the 
General  Mixed  Workhouse  and  to  enact  that  after 
such  a  date  no  Board  of  Guardians  shall  be  allowed 
to  house  men,  women,  and  children  in  the  unclassified 
barracks  in  use  to-day.  If  any  body  of  Guardians 
do  not  feel  capable  of  carrying  out  such  a  decree 
the  State  must  take  their  job  over  and  do  it  for 
them. 

For  eighty  years  the  law  makers  have  been  told 
by  their  own  experts  what  their  workhouses  were, 
and  why  they  ought  to  be  abolished  and  the  fact 

283 


THE   LAW  AND   THE   POOR 

that  the  greatest  sufferers  from  the  iniquity  are  poor 
children  who  cannot  voice  their  complaints,  and 
exist  in  dumb  ignorance  of  the  wrongs  that  are  done 
to  them,  does  not  make  our  position  as  the  wrong- 
doers any  less  deserving  of  damnation. 


284 


CHAPTER    XV 

REMEDIES   OF   TO-DAY 

Ring  out  the  feud  of  rich  and  poor  ; 
Ring  in  redress  to  all  mankind. 

Tennyson  :   "  In  Memoriam." 

When  Absalom  cried  out  in  a  loud  voice,  "  Oh, 
that  I  were  made  judge  in  the  land  that  every  man 
which  hath  any  suit  or  cause  might  come  unto  me, 
and  I  would  do  him  justice  !  "  he  was,  as  we  should 
say  nowadays,  playing  to  the  gallery.  Yet,  sincerely 
uttered,  what  a  noble  wish  it  was.  Let  it  stand  as 
an  expression  of  the  still  unfulfilled  ideal  of  judicial 
duty  and  public  service  which  we  owe  to-day  to  the 
poor  of  this  country.  Every  man  has  not  as  yet  a 
judicial  system  that  does  justice  to  every  man. 

And  I  fear  that  Absalom's  fine  saying  was  only  an 
election  cry  in  his  campaign  against  his  father, 
recalling  to  the  voters  perhaps  David's  inconsistency 
in  the  theory  and  practice  of  justice  in  the  matter  of 
Uriah  and  his  wife.  In  those  days  the  King,  the 
Lawgiver,  and  the  Judge  were  but  one  person,  so 
that  to  be  made  Judge  was  to  be  made  Lawgiver  and 
King,  and  you  not  only  administered  the  laws  but 
made  them  as  you  went  along.  Absalom  was  only 
an  office  seeker,  but  his  election  address  contained  a 
noble  sentiment. 

285 


THE  LAW  AND  THE  POOR 

Nowadays  the  Judges  are  merely  servants  of  the 
law,  like  policemen  and  bailiffs  and  the  hangman. 
Nor  does  the  King  make  the  laws,  nor  are  there  in 
theory  any  professional  Lawgivers.  The  people — or 
at  least  so  many  of  the  people  as  get  on  the  register 
and  trouble  to  vote — make  their  own  laws,  or  are 
supposed  to  do  so.  At  least  they  have  the  power 
of  choosing  their  representatives  and  servants  to 
make  what  laws  they  want. 

If,  therefore,  a  sufficient  number  of  men  in  the 
street  greatly  desired  amendment  of  the  law  in  this 
or  that  direction,  I  have  no  doubt  it  would  come 
about.  But  very  few  of  the  problems  that  trouble 
me  come  before  the  eyes  of  the  average  man  in  the 
course  of  his  daily  life,  and  he  is  scarcely  to  be 
blamed  for  not  trying  to  mend  that  which  he  has 
not  observed  is  broken  and  worn  out. 

One  man  may  know  at  first  hand  the  story  of  a 
home  ruined  by  reckless  credit  and  imprisonment 
for  debt,  another  may  know  a  cruel  case  of  lives 
blighted  by  our  unequal  divorce  laws,  a  third  may 
have  seen  the  sad  spectacle  of  an  injured  workman 
sinking  from  honest  independence  to  neurasthenic 
malingering  by  reason  of  the  poisonous  litigious 
atmosphere  of  the  Workmen's  Compensation  Act. 

I  can  never  understand  why  men  and  women 
hunger  after  the  tedious,  unreal,  drab  scandals 
portrayed  in  a  repertory  theatre  when  they  could 
take  a  hand  at  unravelling  the  real  problem  plays 
of  life  in  the  courts  and  alleys  of  the  city  they  live 
in.  Real  misery  and  wretchedness  is  at  least  as 
pathetic  as  the  sham  article,  and  if  you  do  your 

286 


REMEDIES   OF  TO-DAY 

theatre-going  in  a  real  police  court  you  may  learn 
to  become  a  better  citizen. 

Not  that  I  advise  all  men  and  women  to  spend 
their  leisure  in  these  squalid  surroundings.  I 
recognise  that  the  man  in  the  street  cannot  at  first 
hand  study  all  these  problems,  and  that  is  why  I 
have  set  down  something  of  the  disabilities  of  the 
poor  under  the  law,  in  the  hope  that  my  political 
pastors  and  masters  may  take  an  interest  in  these 
domestic  reforms. 

There  are  many,  I  know,  who  think  that  a  judge, 
like  a  good  child,  should  in  matters  of  this  kind  be 
seen  and  not  heard.  But  for  my  part  I  am  not  of 
that  opinion,  for  if  a  judicial  person  knows  that  the 
machine  he  is  working  is  out  of  date  and  consuming 
unnecessary  fuel,  blacking  out  the  moral  ether  with 
needless  foul  smoke,  and  if,  moreover,  he  thinks  he 
knows  how  much  of  this  can  be  put  right  at  small 
expense,  should  he  not  mention  the  matter  not  only 
to  his  foreman  and  the  frock  coat  brigade  in  the 
office — who  are  the  folk  who  supply  the  bad  coal — 
but  to  the  owner  of  the  machine  who  has  to  pay  for 
it  and  live  with  it — the  man  in  the  street  ? 

Now  there  is  a  great  deal  that  might  be  done  to 
make  the  law  less  harsh  to  the  poor  without  any  very 
elaborate  legislation,  and  certainly  without  any  of 
those  absurd  inquiries  and  commissions  which  are 
the  stones  the  latter-day  lawgivers  throw  at  the 
poor  when  they  ask  for  the  bread  of  justice. 

I  like  to  read  of  Lord  Brougham,  as  far  back  as 
1830,  shivering  to  atoms  the  house  of  fraud  and 
iniquity  known  as  the  Court  of  Chancery.     I  like  to 

287 


THE  LAW  AND  THE   POOR 

picture  him  pointing  his  long,  lean,  skinny  fingers  at 
his  adversaries,  and  to  see  the  abuses  he  cursed 
falling  dead  at  his  feet.  Could  he  have  had  his  way, 
the  very  County  Court  system  which  we  have  to-day 
would  have  sprung  into  being  within  a  few  months 
of  his  taking  his  seat  on  the  woolsack,  and  he  would 
have  instituted  Courts  of  Conciliation  for  the  poor, 
to  hinder  them  from  wasting  their  earnings  in  useless 
costs. 

But  the  petty  men  who  walked  under  his  huge 
legs  and  peeped  about  were  too  many  for  Colossus. 
And,  to  be  fair  to  the  fools  of  his  time,  the  great 
giant  was  not  himself  a  persuasive  and  tactful 
personality.  Sane,  wise,  and  far-reaching  as  were 
the  legal  reforms  he  propounded,  too  many,  alas, 
still  remain  for  future  generations  to  tackle. 

Pull  down  your  Hansard  debates  of  to-day,  read 
them  if  you  can,  and  say  honestly  in  how  many 
pages  you  find  political  refreshment  for  the  man  in 
the  street.  The  small  reforms  of  existing  laws  that 
weigh  hardly  on  the  poor  are  worth  at  least  as  much 
of  parliamentary  time  as  many  of  the  full  dress 
debates  about  ministers'  investments  and  tariff 
reform  and  the  various  trivial  absurdities  that  excite 
the  little  minds  of  Tadpole  and  Taper,  but  have  no 
relation  whatever  to  the  works  and  days  of  the 
poorer  citizens  of  the  country. 

And  if  I  were  called  upon  to  draw  up  a  new 
Magna  Charta  for  the  poor — and  I  could  draft  all 
the  reforms  I  want  in  a  very  small  compass — I  should 
put  at  the  head  of  the  parchment — "  Let  it  be 
enacted  that  no  British  subject  may  be  imprisoned 

288 


REMEDIES   OF   TO-DAY 

for  a  civil  debt."  I  do  not  believe  that  if  Members 
of  Parliament  would  vote  on  this  subject  as  I  know 
many  of  them  would  really  wish  to  vote  that  there 
would  be  a  dozen  voters  in  the  "  No  "  lobby,  and  I 
am  firmly  convinced,  though  here  I  must  own  my 
parliamentary  friends  are  in  disagreement  with  me, 
that  they  would  not  injure  their  hold  on  their 
constituencies. 

If  there  were  any  machinery  in  our  unbusiness- 
like Parliament  for  dealing  with  social  subjects  on 
a  non-party  basis,  imprisonment  for  debt  would 
have  been  abolished  long  ago.  The  proposal  is, 
however,  a  proposal  to  ameliorate  the  bottom  dog, 
and  the  human  bottom  dog  is  poorly  represented  in 
the  great  inquest  of  the  nation.  The  foreign  bird 
whose  plumes  adorn  the  matinee  hats  of  our  dearly 
beloveds,  the  street  cur  who  might  find  a  sphere  of 
utility  in  the  scientist's  laboratory,  the  ancient  cab- 
horse  who  crosses  the  Channel  to  promote  an 
entente  cordiale  by  nourishing  the  foreigners — 
all  these  have  friends,  eloquent  and  vigorous  for  the 
lives  and  liberties  of  their  especial  pets  ;  but  the 
poor  man  who  goes  to  gaol  because  he  cannot  pay 
the  tally-man  has  few  friends. 

There  is  no  getting  away  from  the  fact  that 
political  influences  are  against  the  abolition  of 
imprisonment  for  debt.  I  remember  many  years 
ago — more  than  twenty,  I  fear — a  learned  County 
Court  judge  laughing  at  the  eagerness  with  which  I 
threw  myself  into  a  newspaper  campaign  against 
imprisonment  for  debt.  "I,  too,"  he  said,  "used 
to  think  I  should  live  to  see  it  abolished,  and  you 

l.p.  289  u 


THE   LAW   AND   THE   POOR 

think  that  merely  stating  unanswerable  arguments 
against  it  is  likely  to  lead  to  results.  Well,  I  used  to 
think  that  way  about  it  at  one  time,  but  it  is  not 
a  matter  of  argument  at  all ;  it  is  all  a  case  of  vested 
interests  and  nervous  politicians.  Some  day  another 
Lord  Brougham  will  come  along  and  sweep  the  thing 
away  as  he  swept  away  the  old  Chancery  Courts 
and  many  another  legal  abuse,  but  I  shall  never  see  it 
done,  and  unless  you  are  another  Methuselah  you 
will  never  see  it  done."  And  then  with  a  laugh  of 
mock  despair  he  added  : 

Logic  and  sermons  never  convince, 

The  damp  of  the  night  drives  deeper  into  my  soul. 

I  am  beginning  to  think  that  my  old  friend  spoke 
with  the  tongue  of  prophecy,  and  he  was  certainly 
right  about  the  vested  interests. 

The  three  parties  in  English  politics  have  a  curious 
attachment  to  imprisonment  for  debt.  They  do  not 
allude  to  it  much  on  the  platform  or  in  the  House, 
but  it  is  there  at  the  back  of  their  minds  all  the  same. 
The  Conservative  opposition  to  the  proposal  is  the 
more  straightforward  and  natural.  Here  is  a 
system  which  enables  the  well-to-do  to  collect  money 
from  the  poor,  it  encourages  credit  giving,  and  is 
thought  to  promote  trading,  it  causes  no  incon- 
venience to  the  wealthier  classes,  it  exists  and 
always  has  existed,  and  it  works  well.  Why  should 
it  be  altered,  especially  as  there  is  no  great  demand 
for  change,  and  change  is  in  itself  an  evil  thing  ? 
Let  us  leave  well  alone.  The  Liberal,  off  the  plat- 
form, is  much  in  agreement  with  the  proposition  of 
abolition,  his  difficulties  are  purely  practical  diffi- 

290 


REMEDIES   OF   TO-DAY 

culties.  He  finds  among  his  best  supporters, 
drapers,  grocers,  tally-men  and  shop-keepers,  most 
of  them  Nonconformists  and  keen  Radicals,  and  all 
of  them  credit  givers,  carrying  on  their  businesses 
under  the  sanction,  more  or  less  direct,  of  imprison- 
ment for  debt.  These  traders  are  not  only  voters 
and  supporters,  but  they  are  centres  of  political 
influence.  I  remember  in  the  South  of  England, 
thirty  years  ago,  being  told  of  a  grocer  in  a  small 
village  who  was  a  man  whose  support  it  was  neces- 
sary for  the  candidate  to  obtain.  I  went  along  to 
see  him  and  he  agreed  to  support  my  friend.  He 
was  worth  over  two  hundred  votes,  all  of  them  in  his 
debt  and  liable  to  be  summoned  at  any  moment  for 
more  than  they  could  pay. 

In  politics  it  is  absurd  to  expect  individuals  to 
kick  against  the  pricks,  and  I  do  not  know  of  any 
politician  who,  deeply  as  he  may  believe  in  the 
justice  and  expediency  of  abolishing  imprisonment 
for  debt,  has  ever  cared  to  take  up  the  matter 
and  place  it  prominently  before  his  constituents 
in  the  hope  of  being  able  to  convince  them  that  it 
would  make  for  the  greatest  happiness  of  the 
greatest  number.  The  general  belief  seems  to  be 
that  the  influence  of  the  shopkeeping  and  travelling 
trading  classes  would  be  used  against  such  a  Quixote, 
and  he  would  receive  a  severe  warning  to  stick  to 
the  ordinary  hack  lines  of  political  talk  and  not 
risk  his  seat  tilting  at  windmills. 

The  attitude  of  the  Labour  party  is  even  more 
peculiar.  Outwardly  and  individually  they,  of 
course,    being    more    thoughtful    and    experienced 

291  u  J 


THE   LAW   AND  THE   POOR 

about  the  wants  of  the  poor,  agree  very  heartily 
that  imprisonment  for  debt  is  a  class  institution 
which  should  be  abolished.  But  they  certainly 
show  no  great  enthusiasm  in  taking  a  hand  at 
working  for  its  abolition.  This  is  partly  due,  no 
doubt,  to  the  fact  that  they  are  business  men  and 
not  theorists  and  have  other  and  nearer  work  to  do. 
They  would,  I  make  no  doubt,  support  any  measure 
of  abolition,  but  it  is  essentially  a  legal  reform  and 
they  would  wait  for  some  legal  authority  to  initiate  it. 

There  is  too,  undoubtedly,  at  the  back  of  the 
Labour  mind  the  idea  that  imprisonment  for  debt 
may  be  a  very  present  help  in  time  of  trouble.  In 
the  Select  Committee  of  1893  Mr.  William  Johnson, 
a  miner's  agent,  gave  evidence  in  favour  of  imprison- 
ment for  debt ;  he  asserted  that  nine-tenths  of  his 
men  did  not  desire  its  abolition  and  were  in  favour 
of  its  continuance.  Later  on  he  pointed  out  that  in 
case  of  sickness  or  in  the  case  of  non-employment, 
"  and  probably  in  the  case  of  strikes,"  credit  given 
under  the  sanction  of  imprisonment  for  debt  would 
be  useful.  Unemployment  and  sickness  are  now 
largely  dealt  with  by  insurance,  and  from  a  public 
point  of  view  the  idea  that  strikes  should  be  financed 
by  the  small  tradesmen  and,  in  case  of  their  bank- 
ruptcy, ultimately  by  the  wholesale  trade,  is  not  an 
attractive  one. 

The  reformer  must  always  expect  to  find  selfish 
class  interests  up  against  him,  but  it  seems  to  me 
that  the  desires  of  those  who  want  to  finance  strikes 
on  credit  and  the  rights  of  those  who  at  present 
are  selling  shoddy  on  credit  at  extravagant   prices 

292 


REMEDIES   OF   TO-DAY 

ought  not  to  weigh  against  the  general  public  welfare. 
If,  as  I  venture  to  think,  the  arguments  against 
the  last  step  in  the  abolition  of  imprisonment  for 
debt  are  as  valid  as  they  were  on  former  occasions, 
and  if,  as  must  be  admitted,  no  evils  have  followed 
on  the  partial  abolitions  of  imprisonment  already 
made  in  1837  and  1869,  then  the  mere  fact  that  the 
public  is  apathetic  on  the  subject  and  that  members 
of  Parliament  are  apprehensive  of  interested  opposi- 
tion is  not  of  itself  sufficient  excuse  for  those  who 
are  in  authority  in  legal  matters  refusing  to  complete 
the  reform  by  abolishing  imprisonment  for  debt  for 
the  poor  as  it  has  already  been  abolished  for  the  rich. 
Of  course,  the  mere  abolition  of  imprisonment  for 
debt  would  not  to  my  mind  be  a  sufficient  protection 
of  the  poor  unless  side  by  side  of  it  were  enacted  a 
homestead  law  greatly  enlarging  the  existing  exemp- 
tions from  execution  of  the  tools  and  chattels  of  a 
working  man.  The  idea  is  that  the  home  furniture 
necessary  to  the  lives  of  the  human  beings  forming 
the  home  should  be  incapable  of  being  seized  for 
debt.  Make  the  limit  twenty  pounds  or  whatever 
sum  you  please  but  clearly  enact  that  sufficient 
chattels  to  furnish  a  reasonable  house  are  exempt 
from  execution.  In  America  and  Canada  these 
homestead  laws  exist  and  work  well.  It  occurs  to 
our  cousins  across  the  pond  that  it  is  a  better  thing 
to  keep  a  home  together  than  to  sell  it  up  for  an  old 
song  to  pay  official  fees  and  costs  and  something  on 
account  to  the  foolish  creditor.  The  returns  from  a 
poor  auction  of  a  workman's  household  furniture  are 
miserable  reading.     The  landlord  by  distress  or  the 

293 


THE   LAW   AND   THE   POOR 

tally-man  by  execution  may  get  a  few  shillings  for 
himself  and  pay  away  a  few  more  shillings  to  bailiffs 
and  others,  but  the  cost  of  it  to  the  poor  is  cruel. 
Tables  and  chairs  and  perhaps  a  sideboard  that 
represent  months  of  savings  and  long  hours  of 
labour  are  in  a  moment  of  misfortune  snatched 
away  from  their  proud  possessor  and  his  home  is  a 
ruin. 

The  homestead  laws  in  Canada,  though  not  the 
same  in  every  State,  go  much  further  than  any  laws 
we  possess  to  prevent  the  breaking  up  of  a  home. 
In  Manitoba,  for  instance,  executions  against  lands 
are  abolished,  though  land  can  be  bound  by  a  judg- 
ment by  registering  a  certificate,  and  the  household 
furniture  and  effects,  not  exceeding  500  dollars  in 
value,  and  all  the  necessary  and  ordinary  clothing  of 
the  debtor  and  his  family  are  exempt  from  execution. 
The  actual  residence  or  house  of  a  citizen  to  the  extent 
of  1,500  dollars  is  also  exempt.  Imagine  what  an 
incentive  it  would  be  to  the  purchase  of  house 
property  and  furniture  if  a  man  were  to  know  that 
his  cottage  to  the  value  of  three  hundred  pounds,  and 
its  contents  to  the  extent  of  one  hundred  pounds, 
would  always  be  protected  from  bailiff  and  sheriff. 
What  a  check,  too,  such  legislation  would  be  on  the 
reckless  way  in  which  credit  is  given. 

One  exception  to  this  rule  seems  to  me  very  fair. 
There  is  no  exemption  of  anything  the  purchase 
price  of  which  was  the  subject  of  the  judgment 
proceeded  upon.  Thus  a  man  cannot  buy  a  side- 
board, refuse  to  pay  the  price  of  it,  and  claim  exemp- 
tion of  the  sideboard  from  execution  by  the  furniture 

294 


REMEDIES   OF   TO-DAY 

dealer  who  sold  it,  though  he  could  claim  exemption 
of  the  sideboard  against  a  money  lender  who  had 
obtained  a  judgment  against  him,  and  wanted  to 
recover  his  debt  by  sweeping  his  home  away.  Here 
in  England  people  are  driven  to  shifts  and  evasions 
by  means  of  bills  of  sale,  goods  put  in  the  wife's 
name,  and  a  number  of  other  semi-dishonest  devices 
to  protect  their  homes.  The  sight  of  a  home  broken 
up  and  the  furniture  that  has  cost  so  many  years  of 
saving  slaughtered  at  a  third-rate  auction  for  little 
more  than  the  costs  and  fees  of  the  bailiffs  is  no  great 
incentive  to  a  working  man  to  spend  his  savings  on 
good,  home-made  chattels.  Cheap  foreign  shoddy  on 
the  hire  system  is  the  order  of  to-day,  and  as  a  mere 
matter  of  encouragement  of  the  better  class  home 
trade  in  furniture,  carpets,  drapery  and  household 
goods  generally,  we  might  consider  the  advisability 
of  taking  a  leaf  out  of  the  Statute  book  of  Manitoba. 

That  debt  should  never  be  allowed  to  utterly 
destroy  a  family  and  a  home  seems  to  me  such  a 
clear  and  sane  idea  that  it  has  always  been  a  puzzle 
to  me  to  try  and  understand  the  point  of  view  of 
those  who  cannot  see  the  matter  in  the  same  light. 
I  know  it  is  a  degrading  confession  for  anyone  with 
even  the  pretence  of  a  judicial  mind  to  have  to  make 
but  it  is  best  to  be  honest  about  it.  I  rather  gather 
I  am  a  little  obsessed,  or  abnormal,  or  feeble-minded, 
or  senile  perhaps  nowadays  about  anything  that 
touches  home  or  home  life. 

The  home  to  me  is  the  great  asset  of  the  nation. 
I  do  not  want  to  see  the  home  superseded  by  State 
barracks   or   common   hostels  or  district   boarding 

295 


THE  LAW  AND   THE  POOR 

schools.  On  the  contrary,  I  think  individual  homes 
are  'good  for  the  development  of  citizens.  For  this 
reason  I  would  protect  the  home  from  ruin  by  an 
extravagant  husband  or  an  extravagant  wife  in  the 
interests  of  the  children,  who  are  the  next  generation 
of  citizens,  and  whose  welfare  is,  therefore,  a  deben- 
ture of  the  State. 

Nobody  would  think  of  distraining  on  a  pheasant's 
nest,  or  breaking  up  the  home  of  a  couple  of  part- 
ridges, or  imprisoning  the  birds  at  breeding  time  in 
separate  coops  and  cutting  down  their  food  merely 
because  one  of  the  birds  had  run  up  a  bill  for  too 
many  mangel  wurzels  or  the  other  had  run  into  debt 
for  some  fine  feathers  beyond  her  means. 

Pheasants  and  partridges  are  too  valuable  to  be 
so  treated.  Their  nests  are  protected  from  any 
distress  or  execution  by  poachers,  and  their  bodies 
are  protected  from  arrest  by  watchful  gamekeepers 
under  strict  laws.  I  want  to  insure  under  my 
reformed  laws  that  the  human  nest  should  be  pro- 
tected in  the  same  way,  and  that  judges  should  not 
only  be  allowed,  but  ordered,  to  take  care  that  the 
home  is  not  devastated  by  human  misfortune  or  even 
by  improvidence.  We  want  Game  Laws  for  the 
poor.  In  future  our  legislators  must  treat  them  as 
game  birds — as  indeed  most  of  them  are — and  not 
as  vermin  to  be  devoured,  they  and  their  children, 
by  the  owls  and  kites  of  the  underworld  in  which 
they  live. 

And  the  second  clause  of  my  Magna  Charta 
would  be  of  almost  simpler  dimensions  than  the 
first.     It  would  run  :    "  Let  it  be  enacted  that  the 

296 


REMEDIES   OF   TO-DAY 

County  Courts  have  jurisdiction  in  Divorce."  This 
would  at  once  place  rich  and  poor  on  an  equality 
that  is  not  yet  even  aimed  at.  I  should  not  com- 
plicate this  matter  with  the  overdue  reforms  pro- 
posed by  the  Divorce  Commission,  much  as  I  should 
like  to  see  those  enacted.  They  are  matters  of 
general  interest  that  have  waited  for  so  many 
years  that  there  is  not  much  hardship  in  holding 
them  back  further,  but  the  institution  of  a  new 
tribunal  of  divorce  is  of  vital  and  immediate  impor- 
tance to  the  poor.  The  Act  would  be  a  practically 
unopposed  act  of  one  clause.  It  would  only  touch 
one  vested  interest,  the  London  lawyers  of  the 
Divorce  Court,  and  it  would  greatly  please  their 
brethren  throughout  the  country. 

All  details  of  costs  and  machinery  could  be  left 
to  rule  committees,  as  is  the  common  practice  in 
other  and  more  important  matters  that  have  come 
to  the  County  Courts,  such  as  Admiralty  and  equity 
jurisdiction,  and  a  hundred  other  really  difficult 
and  complicated  matters. 

And  then  would  follow  a  lot  of  simple  but  impor- 
tant reforms  that  really  only  need  the  stroke  of  the 
official  pen  that  is  never  made  until  the  man  in  the 
street  rises  in  his  wrath  and  knocks  the  official 
funny-bone  on  the  official  desk  and  wakens  him  up 
to  the  fact  that  it  is  officially  time  to  do  some 
official  act. 

For,  of  course,  police  court  fines  must  be  cut 
down  and  time  given  to  pay  them,  and  police  court 
costs  must  be  paid  by  the  community,  and  bank- 
ruptcies must  be  made  available  to  the  poor,  and 

297 


THE    LAW   AND   THE   POOR 

the  Treasury  must  cease  to  rob  the  poorest  bankrupts 
of  £13,000  a  year,  and  the  limit  of  such  bankruptcies 
must  be  raised  to  £250,  so  that  poor  little  business 
men  and  their  creditors  may  get  what  there  is, 
rather  than  it  should  all  go  in  costs  and  fees  and 
payments  to  lawyers  and  accountants,  who  must 
give  up  sparrow  shooting  and  hunt  for  bigger  game. 

And,  above  all,  we  must  remember  to  engross  in 
big  black  text  on  our  parchment  what  Joseph 
Chamberlain  said  about  his  Workmen's  Compensa- 
tion Act,  that  it  is  to  be  worked  without  lawyers, 
or  at  least,  that  it  is  to  be  made  one  of  the  judge's 
duties  to  see  employer  and  workman  first  and 
endeavour  to  bring  them  together  before  he  issues 
his  fiat  that  the  affair  is  "  fit  for  litigation." 

This  little  programme  surprises  me  by  its  modera- 
tion. How  any  society  of  business  men  could 
palaver  about  it  in  any  Palaverment  for  more  than 
a  week  passes  my  comprehension.  I  commend  my 
new  Magna  Charta  to  a  party  in  want  of  a  pro- 
gramme. If  they  carried  it  in  the  first  week  of  their 
Ministry  and  then  adjourned  for  seven  years  to  see 
how  the  world  went  on  without  them,  they  would  be 
the  most  sensible  and  popular  Government  since  the 
days  of  Alfred  the  Great. 


298 


CHAPTER   XVI 

REMl  Ml  S   OF    TO-MORROW 

Happy  he  whose  inward  ear 
Angel  comfort  ings  can  hear, 

<  >'er  the  rabble's  laughter  ; 
And,  while  Hatred's  faggots  burn, 
( .limpses  through  the  smoke  discern 

i  m  i  In-  good  hereafter. 

Knowing  this,  that  never  yet 
Share  of  Truth  was  vainly  set 

In  the  world's  wide  fallow  ; 
After  hands  shall  sow  the  seed. 
After  hands  from  hill  and  mead 

Reap  the  harvests  yellow. 

Thus,  with  somewhat  of  the  Seer, 
Must  the  moral  pioneer 

From  the  Future  borrow  ; 
Clothe  the  waste  with  dreams  of  grain. 
And,  on  midnight's  sky  of  rain, 

Paint  the  golden  morrow  ! 

John  Greenleaf  Whittier  : 
"  Barclay  of  I 

I  remember  in  my  youth  being  told  in  the  words 
of  Marcus  Aurelius  :  "Be  satisfied  with  your  busi- 
ness and  learn  to  love  what  you  were  bred  to."  At 
the  time  I  may  have  resented  the  advice,  but  1 
have  lived  long  enough  to  see  the  wisdom  of  it. 
Personally,  at  that  period,  I  should  have  liked 
to  have  been  an  engine  driver  or  at  least  a  railway 
guard ;   later   on   in   years   I  had   thoughts   about 

299 


THE  LAW  AND  THE   POOR 

carpentering ;  and  in  course  of  time  water-colour 
painting,  etching,  playing  the  fiddle,  and  even  golf 
seemed  possible  of  attainment.  But  when  you 
really  learn  that  these  higher  ranks  of  life  are  closed 
to  you  by  your  own  natural  limitations  and  find  out 
that  your  business  in  life  is  to  be  a  drab  official  in 
an  inferior  court,  then  Marcus  Aurelius  is  indeed 
grateful  and  comforting. 

One  can,  after  many  years  of  it,  learn  to  love  even 
the  County  Court.  You  have  much  the  same  out- 
look and  experience  of  life  and  human  nature  as  the 
old  bus  driver.  Every  day  brings  you  new  passen- 
gers who  accompany  you  for  a  few  minutes  on  the 
journey  of  life,  and  you  get  to  know  many  old  ones 
and  have  a  friendly  crack  with  them  over  their 
domestic  troubles.  Moreover,  at  moments  your 
daily  job  brings  you  in  near  touch  with  the  joys 
and  sorrows  and  trials  and  daily  efforts  of  poor 
people,  and  once  in  a  way  perhaps  you  can  be  of 
use,  which  to  a  child  and  to  a  grown-up  who  has  any 
of  the  child  left  in  him  is  always  a  jolly  thing. 
When  you  have  really  got  quite  accustomed  to 
enjoying  your  work  the  natural  garrulity  which 
your  friends  lovingly  attribute  to  senile  decay 
stimulates  you  to  make  them  partners  in  your  joy. 
The  narrow  circle  in  which  you  spend  your  daily 
life  has  become  your  only  world.  You  find  yourself 
quoting  with  approval  "  with  aged  men  is  wisdom, 
and  in  length  of  days  understanding,"  and  you 
begin  to  believe  you  are  the  only  person  who  really 
does  understand.  Childlike,  you  find  dragons  in 
your  path  that  you  want  to  slay,  pure  and  beautiful 

300 


REMEDIES   OF   TO-MORROW 

souls  are  oppressed,  and  you  fancy  that  you  can  re- 
lease them  from  bondage  ;  there  are  giants  of  injustice 
and  persecution  in  the  land  whose  castles  you  mean 
to  turn  into  peoples'  palaces.  Then  you  sit  down 
to  write  your  fairy  tales  again — but  no  longer  for 
the  children  nowadays,  since  they  are  all  grown  up. 
These  fairy  tales  are  for  journalists,  philanthropists 
and  politicians  who  make  fairy  tales  and  live  on  fairy 
talcs ;  and  believe  me,  there  are  no  more  essential 
fairy  tales  than  stories  about  legal  reform.  Only  to 
the  writer  are  they  real,  and  to  one  or  two  choice 
child  spirits  who  never  grow  old  and  still  believe  in 
a  world  where  everyone  is  going  to  live  happily 
ever  afterwards.  The  way  in  which  Master  Ogre, 
the  Law,  swallows  up  the  poor  is  quite  like  a  real 
fairy  tale,  and  it  would  have  even  a  happier  like- 
ness to  the  fiction  of  the  nursery  if  wc  could  tell  of  a 
Jack  the  Giant  Killer  cutting  off  the  wicked  monster's 
head  and  rescuing  his  victims. 

I  am  under  no  delusions  that  this  little  volume  is 
going  to  do  any  particular  good  in  any  particular 
hurry.  I  know  by  historical  study  that  the  way  of 
reform  lies  through  official  mazes  of  docket  and 
precis  and  pigeon  holes,  that  legislative  decisions 
are  hatched  out  in  some  bureaucratic  incubator  that 
the  eye  of  common  man  has  never  seen.  I  reverence 
the  mystery  that  surrounds  these  high  matters. 
It  is  really  good  for  us  that  we  should  know  so  little 
of  the  reason  why  things  are  no  better  than  they 
are.  And  then  how  good  our  rulers  are  to  us  in  the 
matter  of  Royal  Commissions  and  Blue  Books  ! 
At  our  own  expense  we  may  really  have  as  many  of 

301 


THE   LAW   AND   THE   POOR 

these  as  we  ask  for.  I  wish  I  could  get  folk  to 
understand  what  a  lot  of  sterling  entertainment 
there  is  in  blue  books.  All  the  earnest  ones,  all  the 
clever  ones,  all  the  cranky  ones  of  this  world  set 
down  their  views  and  opinions  on  any  subject  at 
any  distance  from  that  subject,  and  wrangle  and 
argue  and  cross-examine  each  other,  and  then  the 
good  Government  prints  it  for  us  all  verbatim  and 
sells  it  to  us  very  very  cheap.  Practically,  I  dislike 
the  shape  of  a  blue  book,  and  aesthetically  they  do 
not  match  my  library  carpet  when  they  are  lying 
around,  which  is  a  disadvantage,  but  I  must  own  that 
if  I  were  banished  to  a  desert  island  I  would  rather 
have  my  blue  books  than  much  of  what  is  called 
classical  literature. 

The  evidence  is  the  best  reading — and  when  one 
comes  to  the  final  report  I  generally  find  the  mino- 
rity report  to  be  the  thing  one  is  looking  for,  as  it  is 
usually  the  minority  who  want  to  do  something. 
But  in  some  subjects,  divorce  for  instance,  things 
are  moving  so  hurriedly  during  these  last  few 
hundred  years  that  actually  there  is  a  majority  in 
favour  of  legislation  and  reform. 

Not  that  this  makes  the  slightest  difference  as  to 
any  actual  reform  being  done.  The  feeling  of 
security  that  nothing  is  ever  going  to  come  of  it 
makes  it  a  safe  and  reasonable  thing  to  print  the 
most  advanced  views  at  the  expense  of  the  State. 
The  physical  weight  and  size  of  these  volumes  have 
been  carefully  considered  and  the  whole  format 
cunningly  designed  to  repel  readers.  Nothing  ever 
comes  of  blue  books,  and  I  do  not  suppose  anything 

302 


REMEDIES   OF   TO-MORROW 

ever  will  come  of  them.  When  I  turn  over  their 
dreary  pages  I  find  myself  humming  Kipling's 
chorus — 

And  it  all  goes  into  the  laundry, 
But  it  never  comes  out  in  the  wash, 
'Ow  we're  sugared  about  by  the  old  men 
('Eavy  sterned  amateur  old  men  !) 
That  'amper  an'  'inder  an'  scold  men 
For  fear  o'  Stellenbosh. 

Dickens  had  the  same  impatience  of  the  heavy 
sterned  brigade  and  invented  his  immortal  Circum- 
locution Office,  and  doubtless  genius  is  entitled  to 
deride  these  substantial  State  institutions.  Per- 
sonally, I  find  them  very  English  and  valuable. 
The  more  energetic  of  us  may  take  our  pleasure  in 
giving  friendly  shoves  to  these  heavy  sterned 
Christians,  but  their  inert  services  to  the  com- 
munity are  not  to  be  undervalued.  But  for  this 
immovable  official  wall  who  knows  what  reforms, 
unnecessary  and  ill-advised,  might  have  been 
carried  through.  If  Lord  Brougham  could  have 
had  his  way  much  that  I  am  writing  about  to-day 
would  long  ago  have  happened.  The  heavy 
sterned  ones  sitting  on  the  lid  prevented  the  opening 
of  the  Pandora  box  with  its  promises  of  affliction 
for  the  human  race  in  the  shape  of  legal  reform. 
They  have  left  these  things  over  until  to-day  and 
brought  me  amusement  for  idle  vacation  hours. 
At  least,  let  me  be  thankful  to  them  and  sing  their 
praises. 

I  remember  when  I  was  planning  out  these  chapters 
being  the  victim  of  a  most  terrible  nightmare.  A 
newspaper  with  a  King's  speech  in  it  was  thrust 

303 


THE  LAW  AND   THE   POOR 

before  me  and  every  one  of  the  reforms  I  had  already 
written  about  was  promised  to  be  passed  within 
the  Session.  I  remember  smiling  in  my  dream, 
knowing  what  parliamentary  promises  were,  and 
then  as  I  was  gliding  down  the  Strand  a  silent 
phantom  newsboy  handed  me  an  evening  paper. 
There  it  was  in  black  and  white,  every  bill  was 
passed — there  was  nothing  left  to  write  about.  I 
awoke  with  a  cry.  It  was  a  terrible  shock,  and  it 
was  some  moments  of  time  before  I  could  realise 
that  such  a  thing  was  absolutely  impossible.  And, 
of  course,  when  you  think  of  the  large  number  of 
things  that  you  want  done  and  recollect  that 
nothing  ever  is  done  that  a  man  really  cares  about 
in  his  own  lifetime  it  was  absurd  of  me,  even  in  a 
dream,  to  believe  that  anything  was  coming 
between  me  and  my  little  book.  Indeed,  I  have 
hopes  that  for  many  years  to  come  it  may  be 
regarded  as  a  popular  primer  about  legal  reform 
for  future  generations  who  wish  to  while  away  idle 
hours  in  the  luxury  of  vain  imagination. 

I  should  like  to  interest  the  man  in  the  street 
about  legal  reform  and  to  see  him  at  work  remedying 
some  of  the  more  obvious  of  the  existing  abuses  I 
have  referred  to,  but  I  am  under  no  delusion  that 
such  reforms  would  bring  about  the  millennium. 
It  is  good  to  do  the  pressing  work  in  the  vineyards 
on  the  slopes  of  the  mountain,  but  it  is  permissible 
for  poor  human  man  to  have  his  day  off  now  and 
then  to  climb  on  the  hilltops  and  gaze  out  on  the 
limitless  ocean  of  the  future  and  indulge  in  wild 
surmises  of  the  after- world. 

304 


REMEDIES   OF   TO-MORROW 

The  remedies  of  to-day  are  really  tiresome  paro- 
chial affairs  compared  to  the  remedies  of  to-morrow 
and  hardly  seem  worth  troubling  about  when  one 
considers  that  even  if  you  passed  them  all  this  year 
in  a  century  or  two  your  new  statutes  would  be  out 
of  date  and  only  fit  for  the  scrap  heap. 

Bacon  tells  us  that  Time  is  the  greatest  of  all 
innovators,  but  he  does  not  explain  to  us  why, 
unlike  all  human  innovators,  Time  is  in  no  hurry 
about  it.  I  have  quite  distinct  beliefs,  which  to  me 
are  certainties,  as  to  how  Time  will  reconcile  the 
law  and  the  poor  in  the  centuries  to  come,  when  our 
social  absurdities  and  wrong-doing  will  not  even  be 
remembered  to  be  laughed  at.  The  law  will  nevel 
be  a  really  great  influence  for  good  until  it  is  utterly 
conquered,  put  in  its  proper  place  in  the  world 
and  based  on  the  principle  of  Love.  In  other  words, 
when  the  Law  of  Love  receives  the  Royal  Assent  no 
other  law  will  be  necessary. 

Nineteen  hundred  years  ago  a  new  principle  was 
introduced  into  the  world.  It  was  the  principle 
of  unselfishness,  and  its  apostles  were  labour  men. 
In  relation  to  man's  personal  life  it  has  made  some 
progress,  but  in  practical  social  politics  its  business 
value  is  not  yet  fully  recognised.  Still,  a  beginning 
has  been  made,  and  that  old  snail,  Time,  is  doubtless 
satisfied  with  the  pace  of  things.  Let  us  remember 
hopefully  that  two  thousand  years  ago  unselfishness 
as  a  basic  principle  of  life,  doing  to  others  as  you 
would  be  done  by,  promoting  peace  and  good  will 
instead  of  strife  and  ill  will — these  ideas  as  business 
propositions   were   as   unknown    then   as   railways, 

l.p.  305  x 


THE   LAW   AND  THE  POOR 

telegraphs,  motor  cars,  and  aeroplanes.  A  vision  of 
to-day  would  have  been  a  wild  fairy  tale  to  Marcus 
Aurelius,  a  vision  of  two  thousand  years  hence  would 
be  incomprehensible  to  us. 

One  does  not  mean,  of  course,  that  unselfishness 
had  never  before  been  preached  as  an  ideal,  but  a 
society  based  on  the  common  quality  of  all  its 
members  placing  the  interests  of  others  above  their 
own  was  a  new  notion,  and  the  novelty  of  it  has  not 
yet  worn  off.  Nevertheless,  love  and  unselfishness 
have  achieved  sufficient  lip-service  already  to  make 
me  hopeful  of  their  future,  and  I  foresee  a  time 
when  they  will  be  the  foundation  of  the  laws  of  the 
world,  and  the  preamble  to  every  statute  will  be 
"  Blessed  are  the  Peacemakers." 

Some  day  when  the  Chinese  send  over  a  mission 
to  heathen  England,  missionaries  will  go  about  the 
country  destroying  all  the  boards  on  which  are 
written  the  wicked  words  "  Trespassers  will  be 
Prosecuted."  But  I  hope  we  may  not  have  to  wait 
for  a  foreign  mission  to  teach  us  our  duty. 

This  phrase,  typical  of  the  law  of  to-day  and 
eloquent  of  the  claims  of  the  rich  to  fence  the  poor 
off  the  face  of  the  earth,  must  utterly  disappear 
when  the  new  spirit  of  the  law  is  made  manifest. 
We  have  no  sense  of  humour.  On  Sunday  we 
intone  to  slow  music  our  desire  to  forgive  our 
enemy  his  trespasses  ;  on  Monday  we  go  down  to 
our  solicitor  to  issue  a  writ  against  him  for  the 
trespass  we  have  failed  to  forgive.  The  old  notice 
threatening  prosecution  is  really  already  out  of  date. 
It  ought,  of  course,  to  read,  "  Trespassers  will  be 

306 


REMEDIES   OF  TO-MORROW 

Forgiven."  For  my  part  if  I  met  with  such  a  notice, 
I  should  hesitate  before  I  walked  across  the  owner's 
land  ;  whereas  to-day,  when  I  am  threatened  with 
prosecution,  my  bristles  go  up,  I  scent  a  right  of  way, 
and  as  like  as  not  proceed  in  my  trespassing  out  of 
pure  cussedness.  There  are  a  lot  of  other  folk  besides 
myself  who  are  built  that  way.  I  know  a  little  girl 
of  five  whose  chief  glory  in  life  is  to  walk  "  on  the 
private,"  as  she  calls  it,  when  the  park-keeper  is  not 
looking.  It  is  that  constant  "  Don't !  "  and  "  You 
mustn't  "  that  rouses  the  rebel  in  us.  The  less  for- 
bidding there  is,  the  easier  the  path  of  obedience. 

1  hold  no  brief  for  trespassers.  I  know  it  is 
naughty  to  trespass.  But  in  the  present  state  of 
my  evolution  there  is  so  much  of  the  original  monkey 
in  me  that  when  that  "  monkey  is  up,"  to  use  a 
phrase  dear  to  Cardinal  Newman,  I  go  astray.  So 
do  many  of  my  best  friends. 

I  have  the  same  belief  in  the  evolution  of  the 
moral  world  and  its  onward  movement  that  I  have 
in  the  revolution  of  the  physical  world  and  its 
rotary  movement.  For  this  reason  I  expect  my 
great-grandchildren  of  two  thousand  years  hence 
to  be  much  better  behaved  than  I  am.  You  can  see 
it  coming  along  in  your  own  grandchildren  unless  your 
sight  is  getting  dim.  And  I  am  quite  clear  that  my 
own  manner-,  are  an  improvement  on  my  great 
grandfathers,  who  lived  in  eaves,  and,  when  they  had 
disputes,  made  it  clubs,  and  battered  each  other 
strenuously  until  it  was  proved  which  had  the 
thickest  skull,  when  he  of  the  toughest  cranium  was 
adjudged  to  be  in  the  right. 

307  x  2 


THE   LAW  AND  THE   POOR 

The  vigorous  legal  procedure  of  the  cave  men 
sounds  laughable  enough  to  us  nowadays,  but  does 
anyone  think  that  two  thousand  years  hence 
superior  unborn  persons  will  not  be  smiling  super- 
ciliously over  the  history  books  that  record  the 
doings  of  our  judges,  our  hired  counsellors,  our 
sheriffs,  our  gaolers,  and  our  hangman  ? 

It  was  only  in  the  recent  reign  of  good  Queen  Bess 
that  the  ordeal  of  battle  was  given  up.  The  aboli- 
tion of  that  old-world  lawsuit  must  have  been 
painful  to  the  conservative  mind.  And  there  was 
a  lot  to  say  for  it.  From  a  sporting  point  of  view, 
what  could  be  better  than  to  go  down  to  Tothill 
Fields  in  Westminster,  as  you  might  have  done  in 
1571,  to  see  A.  B.  battering  C.  D.  to  the  intent  that 
whichever  knocked  the  stuffing  out  of  the  other 
gained  the  verdict  ? 

If  you  look  at  it  from  a  healthy,  open-air  point  of 
view,  maybe  it  was  better  for  everybody  than  sitting 
in  a  stuffy  court  and  listening  to  two  bigwigs 
splitting  hairs  to  the  resultant  financial  ruin  of  one 
of  their  clients.  One  reason,  no  doubt,  that  trials 
by  battle  were  abolished  was  that  they  gave  the 
poor  at  least  as  good  a  chance  as  the  rich. 

I  remember  a  good  story — it  is  an  old  one,  but 
still  quite  good — of  a  noble  lord  and  landowner  who 
met  a  collier  trespassing  in  the  neighbourhood  of 
Wigan. 

'*  My  good  man,"  said  my  lord,  "  do  you  know  you 
are  trespassing  ?  " 

"  WeU,  wot  of  it  ?  " 

' '  You  have  no  right  to  be  walking  across  my  land." 

308 


REMEDIES   OF   TO-MORROW 

"I'm  like  to  be  walking  across  somebody's  land, 
I've  noan  o'  me  own." 

"  Well,  you  must  not  come  across  mine." 

"  How  do  I  know  it  is  yours,  and  who  gave  it  you  ? " 

"  Well,  this  land,"  replied  the  noble  lord, 
"  belonged  to  my  father  and  grandfather  and  his 
father  for  many  generations." 

"  But  how  did  thi'  first  grandfeyther  get  it  ?  " 
persisted  the  collier. 

"  Well,  as  a  matter  of  fact,  it  was  granted  by  the 
King  for  services  rendered.  I  may  say,"  my  lord 
added  proudly,  "  that  my  ancestors  fought  for  this 
land." 

"  Did  they,  now  ?  "  said  the  collier,  "  then  tak  off 
thi'  coat  an'  I'll  feight  thee  for  a  bit." 

One  can  see  from  this  anecdote  that  it  would 
never  do  to  return  to  ordeal  by  battle.  And  though 
individual  fighting  by  violence  to  assert  rights  is 
out  of  date  and  not  permissible,  yet  in  the  affairs 
of  the  collection  of  human  beings  known  as  nations 
the  horrible  waste  of  armaments  and  the  menace  of 
war  are  living  evidence  of  the  ultimate  tribunal  to 
which  wc  still  appeal. 

No  one  really  believes  that  force  and  violence  are 
sane  remedies  for  the  evils  of  the  world,  and  the 
whole  history  of  mankind  shows  a  gradual  decline 
in  the  practice  and  use  of  them.  In  each  succeeding 
generation  our  children  will  be  nearer  the  truth  than 
we  are,  and  further  on  the  journey  towards  the  end 
when  the  rule  of  Love  and  Unselfishness  will  be  the 
only  law  of  the  Universe,  and  will  enforce  itself 
without  judges,  juries,  or  policemrn. 

309 


THE  LAW  AND   THE   POOR 

And  lest  anyone  should  say  that  all  this  is  the 
mere  vague  raving  of  prophecy,  let  me  set  down  a 
short,  practical  catalogue  of  what  I  expect  the  reme- 
dies of  to-morrow  to  bring  about  in,  say,  two 
thousand  years.  In  the  first  place,  the  disabilities 
of  the  poor  that  I  have  written  about  in  these  pages 
will  all  have  been  abolished  and  forgotten.  Crime 
will  be  regarded  as  a  disease,  and  it  will  be  as  in- 
human to  treat  the  criminal  with  harshness  as  it  is 
to-day  to  torture  lunatics  after  the  methods  of  a 
hundred  years  ago. 

Every  citizen  will  have  a  right  to  sufficient  food, 
clothing,  housing,  and  entertainment  in  exchange 
for  reasonable  hours  of  work.  The  spirit  of  humanity 
will  so  greatly  have  been  improved  that  it  will  be 
very  little  necessary  to  extort  proper  conditions  for 
the  lives  of  citizens  or  to  protect  the  weak  from 
exploitation  by  the  strong.  Litigation  and  war 
will  be  out  of  date  and  replaced  by  conciliation  and 
arbitration.  In  a  word,  the  reign  of  love  and 
unselfishness  will  have  commenced. 

We  may  not  even  see  my  beautiful  world  from 
afar,  but  this  need  not  dismay  us,  for  we  know  it  is 
there,  and  we  know  that  every  effort  we  make  to 
serve  the  cause  of  the  poor  helps  to  clear  the  path 
through  the  desert  along  which  the  coming  armies 
of  victory  will  march  in  triumph.  The  cause  of  the 
poor  has  always  been  the  greatest  cause  in  the  world, 
and  the  generation  that  has  at  length  understood  it, 
and  fought  for  it  and  won  it,  will  find  itself  standing 
at  the  open  gates  of  the  promised  land. 

310 


INDEX 


Abinger,  Lord  Chief  Baron, 
his  judgment  in  Priestley  v. 
Fowler,  77,  78,  95,  96 

Ademantus,  254 

Administration  orders  in 
bankruptcy,  119 — 124 

Alehouse,  the,  252 — 270 

"  Alton  Locke,"  slums  de- 
scribed in,  238 

American  judiciary  and  work- 
ing classes,  93,  94,  95 ;  and 
workmen's  compensation,  103 

Appeals,  cost  of,  175 

Artisans  Dwelling  Act,  1875., 
241 

Asquith,  Right  Hon.  Herbert 
Henry,  on  workmen's  com- 
pensation, 87 

Attorney-General  v.  The  Edison 
Telephone  Co.,  83 

Bacon,  Lord  Chancellor,  305 
Bail,    unnecessary    refusal    of, 

226  ;    statistics  of  this,  228, 

229 
Balfour,    Right    Hon.    Arthur 

James,      on     intemperance, 

255.  256 
Bankruptcy,  106 — 124;  failures 
due  to  extravagance,  115 — 
117;  not  open  to  the  poor, 
118;  administration  orders, 
120  ;  exorbitant  Treasury 
fees,  122 — [24 


Bell,  Alexander  Graham,  82 

Belloc,  Hilaire,  254 

Bentham,  Jeremy,  on  legal 
evidence,  192 

Bias  in  judges,  96 — 103 

Bills  of  Sale  Acts,  168 

Black  Act,  1722.. 218 

Blasphemy  Laws,  199,  200 

Blue  Books,  301,  302 

Bradlaugh,  Charles,  199 

Bridewell,  the,  9 — 10,  213 

Bright,  John,  99 

Brougham,  Lord,  on  imprison- 
ment for  debt,  48,  49 ;  on 
the  Evidence  Amendment 
Act,  193  ;  on  Chancery 
reform,  287,  288 

Butler,  Samuel,  211 

Cadaval,  Duke  de,  arrested 
on  mesne  process,  46 

Capias  ad  satisfaciendum,  37, 
39 

Carlyle,  Thomas,  on  history, 
21  ;  on  language,  108,  no  ; 
on  fools,  153  ;  on  land 
question,  250 

Cattle  maiming,  216 — 219 

Chamberlain,  Right  Hon. 
Joseph,  on  workmen's  com- 
pensation, 87 — 90  ;  on  ad- 
ministration orders,  119, 
120 ;  his  housing  work  in 
Birmingham,  2  \  1 


311 


INDEX 


Chancery  Court,  and  Lord 
Brougham,  287 

Children,  treatment  of,  in 
workhouses,  280,  282 

Closing  time,  regulations  for 
rich  and  poor,  263,  264 

Clough,  Arthur  Hugh,  169 

Cobbett,  Sir  William,  186 

Coke,  Sir  Edward,  Chief  Jus- 
tice, his  description  of  peine 
forte  et  dure,  11  ;  201,  on 
early  Poor  Laws,  274,  275 

Collier,  Sir  Robert,  on  im- 
prisonment for  debt,  55,  56 

"  Compleat    Constable,"    The, 

4—7 
Conciliation  in  trade  disputes, 

no 

Conciliation,  preliminary  of,  in 
France,  187 

Corporal  punishment,  advis- 
ability of,discussed,2og — 212 

Costs  in  police  court,  abolition 
desirable,  222 

Cottenham,  Earl  of,  his  In- 
solvency Bill,  1 83  7..  45 — 47 

County  Court  procedure,  ex- 
pense of,  184 

Court  of  Criminal  Appeal  Act, 
1907. .194,  197,  198 

Crabbe,  on  lawyers,  183 

Cranmer,  Thomas,  Archbishop 
of  Canterbury,  on  divorce, 
125,  126,  127 

Crime  and  punishment,  189 — 
212 

Criminal  Appeal,  Court  of,  189 

Criminal  Evidence  Act,  1898. . 
194 — 196 

Criminal  Law  Amendment  Act, 
210 

Cruelty  to  Animals  Bill  of 
1811 . .219 


Davey,  Lord,  on  workmen's 
compensation,  92 

Deane,  Mr.  Justice  Bargrave, 
on  divorce,  137 

Debt,  imprisonment  for,  Old 
Testament  view  of,  22  ; 
New  Testament  view  of, 
24  ;  Greek  law  of,  27  ; 
Roman  law  of,  31  ;  in  Papal 
Rome,  34  ;  in  time  of 
Henry  III.,  36 — 39  ;  in 
eighteenth  century,  41,  43  ; 
in  "  Pickwick,"  45  ;  mesne 
process,  45  ;  debates  on,  in 
1837..  46;  in  1869..  50 — 
57  ;  evils  of,  59 — 68  ;  argu- 
ments against  abolition,  69 
— 71  ;  none  in  Germany, 
71  ;  nor  in  France,  72  ; 
wastefulness  of  system,  72  ; 
encourages  improvidence, 
157 — 160  ;  in  police  courts, 
220,  222  ;  political  views 
on     abolition       of,      288  — 

293 
Debtors  Act,    1869.. 41,    49 — 

57.  158 

Debtors'  prisons,  41 — 47 

Dendy,  Mr.  Registrar,  on 
divorce  in  County  Court, 
146 

Denman,  Lord,  speech  on  im- 
prisonment for  debt,  46 

Dickens,  Charles,  on  imprison- 
ment for  debt,  45  ;  on  the 
living  wage,  108  ;  on  the 
evidence  of  prisoners,  194  ; 
on  slums,  238;  on  inns  and 
innkeepers,  257 — 259 

DTsraeli,  Benjamin,  slums 
described  in  "  Sybil,"  239 — 
242 

Distress,  law  of,  233 


312 


INDEX 


Divorce.  125 — 151  ;  in  time 
of  Edward  VI.,  125 — 128  ; 
Act  of  1857.. 131  ;  hard 
cases  of  poor,  133 — 141  ; 
necessity  of  using  County 
Court,  144 — 146,  297 

Dogberry,  abolition  of  dis- 
cussed, 223,  224 

Edalji,  217 

Edward  VI.,  126 

Edward  VII.,  126 

Eliot,  George,  174 

Elisha,  and  imprisonment  for 
debt,  22,  23 

Elizabeth,  Queen,  her  Poor 
Law,  276 

Employers  Liability  Act,  1880 
..86 

Erewhon,  treatment  of  crime 
in,  211 

Erskine,  Lord,  and  cruelty  to 
animals,  219 

Eviction,  234 

Evidence,  prisoners  right  to 
give,  193  ;  Criminal  Evi- 
dence Act,  1898..  194;  of 
Crown  not  available  to 
prisoner,  207 — 209 

Exckcstides,  27 

False  pretences,  202,  203 

Fielding,  as  a  magistrate,  213 

Fieri  facias,  39 

Fines  in  police  courts,  unfair 
iin  idence  of,  221,  222  ;  time 
for  payment  of,  224  ;  statis- 
tics 01,  225 ;  abolition  of, 
297 

France,  no  imprisonment  for 
debt,  72  ;  divorce  law,  143, 
147  ;      preliminary    of    con- 


ciliation in,  187  ;    poor  law, 
283 
Fuller,  on  burning  of  heretics, 
200 

Geographical  distribution  of 

crime,  216 
Germany,  no  imprisonment  for 

working    men    debtors,    71  ; 

divorce  in,  147 
Gilbert,  Lord  Chief  Baron,  37, 

39 

Goldsmith,  Oliver,  13,  14 

Gordon,  Cosmo,  Archbishop  of 
York,  on  divorce,  128 

Gordon,  Mr.  Justice,  of  Aus- 
tralian Labour  Court,  no 

Governor  of  gaol,  charity  to 
poor  debtors,  65 

Grand  jury,  181 

Grantham,  Hon.  Mr.  Justice, 
1 01  ;  on  poor  prisoners 
defence,  196 

Gray,  Professor  John  Chipman, 
of  Harvard,  80  ;  on  judge- 
made  law,  81 

Haldane,  Viscount,  66,  215 

Hale,  Sir  Matthew,  Lord 
Chief  Justice,  100 

Halsbury,  Earl  of,  on  work- 
men's compensation,  92 

Hard  labour  for  unconvicted 
prisoners,  227,  228 

Headlam,  John,  an  old- 
fashioned  Dogberry,  227, 
jj\    229 

llerschell.  Lord,  on  prisoners 
giving  evidence,  195 

Hogarth,  10.  15 

Homestead  laws  of  America 
and  Canada,  293,  294,  295 


313 


INDEX 


Hood,  Tom,  108 

Horn,  Andrew,  his  "Mirror  of 

Justices,"  275 
Housing   question,    236 — 251  ; 

Royal    Commission,    1884.. 

242  ;  Select  Committee,  1902 

..244 


Identification    of    prisoners, 

present   methods   criticised, 

230,  231 
Imprisonment    for    debt.     See 

Debt. 
Innkeeper,     independence    of, 

258 


Jeremiah,  and  the  living  wage, 
108,  113 

Jessel,  Sir  George,  on  imprison- 
ment for  debt,  50 

Johnson,  Dr.,  4  ;  on  the  poor 
in  England,  13,  14  ;  on 
public  executions,  15,  16  ; 
on  imprisonment  for  debt, 
70 ;  on  the  formation  of 
laws,  70 

Johnson,  William,  miners' 
agent,  his  views  on 
imprisonment  for  debt,  292 

Judge-made  law,  79 — 85 

Judgment  summonses,  statis- 
tics of,  60,  63 

Judicial  irrelevancy,  180 

Judson,  Frederick  N.,  author 
of  "  The  Judiciary  and  the 
People,"  94 

Justice  of  peace,  utility  of  lay 
justices,  231 


Kelvin,  Lord,  82 


Kingsley,  Charles,  10S ;  on 
slums,  23S  ;  on  teetotallers, 
264 — 266,  270 

Kipling,  Rudyard,  303 


Landlord  and  tenant,  233 — 

251 

Land  transfer  system,  assists 
fraud,  183 

Leniency  to  well  to  do  in 
criminal  courts,  example  of, 
205,  206 

Licensing,  class  regulation  of, 
253  ;  section  4  of  Act  of 
1904.  .256  ;  effect  of  reduc- 
ing number  of  licences,  261  ; 
extension  of  hours  for  rich, 
263  ;  prohibition  of  amuse- 
ments, 267 

Living  wage,  108,  109,  no 

Lysons  v.  Andrew  Knowles,  175 


McMahon,  M.P.,  on  imprison- 
ment for  debt,  55 

Malicious  injury  to  property, 
217,  218 

Manitoba,  homestead  laws  of, 

294.  295 
Marcus  Aurelius,  299,  306 
Married     Women's     Property 

Act,  undesirable  use  of,  161 

—170 
Matthew,    and    imprisonment 

for  debt,  24,  25 
Maule,  Mr.  Justice,  on  divorce, 

129 
Maxwell,  Rev.  Dr.,  13,  14 
Mayence,  public  beer  drinking 

at,  262 
Medical  officer  of  health,  status 

of,  248 


314 


INDEX 


Menander,  on  marriage,  163 
Mesne  process,  arrest  on,  45  ; 

abolished,  49 
Mesnil,  M.   Henri,  on  divorce, 

M3 
Moryson,  Fynes,  8,  11,  34,  35 


Newman,  Cardinal,  307 


Ordeal  of  battle,  308,  309 
Overbury,  Sir  Thomas,  1 1 
Overcrowding,    245  ;       census 
statistics  of,  246 


Parry,  Serjeant,  99 
Peine  forte  et  dure,  12 
Pepys,  Samuel,  4 
Pickersgill,   MP.,   on  prisoner 

giving  evidence,  196 
Pickwick,    and    imprisonment 

for  debt,  45,  47 
Piers  Plowman,  on  debt,   75  ; 

on  law  and  poor,  172,  173  ; 

on  lawyers,  188 
Police  courts,  abolition  of  fines, 

297 
Poor    law,    271 — 284  ;     Royal 

Commission,  report  of,  272  ; 

in  time  of   Elizabeth,   276  ; 

in  eighteenth  century,  276  ; 

iniS34..277;  general  mixed 

workhouses,  278 — 284 
Poor  man's  lawyer,   necessity 

of,  184—187 
Poor    Prisoners    Defence    Act, 

194—197 
Priestley  v.  Fowler,  76 — 79 
Procedure  and  the  poor,  172 — 

188 


Public  houses,  252 — 270.    And 
see  Licensing. 


Railway  Conciliation  Boards, 

and  their  working,   in,  112 
Raleigh,  Sir  Walter,  1,  3 
Regina  v.  Thomas  Hall,  129 
Registrars    of    County    Courts 

and  private  practice,  72,  73 
"  Reformatio     Legum     Eccle- 

sasticarum,  The,"   125 
Ridley,    Sir    Matthew    White, 

on  workmen's  compensation, 

87 
Rivers  Pollution  Acts,  248 
Roe,  Gilbert,  author  of  "  Our 

Judicial  Oligarchy,"  86,  94 
Rogues  and  Vagabonds,  4 — 7 
Ruskin,  John,  108 


Sabbatarianism,  evils  of,  215 
Salford     quarter     sessions     in 

1824. .17 
Salisbury,  Earl  of,  244,  245 
Schuster,      Dr.,     on     German 

system    of    debt    collecting, 

7i 
Scold,      common,      trial      and 

punishment  of,  235 
Scots  divorce,  126 
Scott,  Sir  William,  15 
Seisachtheia,  The,  29 
Selden,     John,     on     marriag* 

contract,  150 
Shop  lifting  by  ladies,  204 
Sims,    George    R.,    his    "  How 

the  Poor  Live,"  242,  243 
Sittlichkeit,  66 

Slums,  legislation  against,  236 
Smith,      Judge     Lumley,      on 

divorce  costs,  148,  149 


315 


INDEX 


Smith,  Rev.  Sidney,  on 
prisoners'  right  to  counsel, 
190,  191  ;  on  prisoners'  in- 
ability to  give  evidence,  192 
Smith,  Sir  A.  L.,  Master  of 
the  Rolls,  on  workmen's 
compensation,  89 
Smollett,  9,  42 

Snowden,    Philip,    M.P.,    and 
the   living   wage,    109  ;     on 
strikes,  11 1 
Socrates,  on  thirst,  255 
Solicitors,  speculative,  175 
Solon,    and   imprisonment   for 

debt,  27 — 31 
Starkie,  Sir  Thomas,  17 
Stephen,  Mr.  Justice,  decision 

in  telephone  case,  82 
Stipendiary  magistrates,  want 
of  in  country,  223  ;  necessary 
in  interests  of  justice,  231 
Sumner,  Lord,  180,  181 
Swift,  on  lawyers,  181,  182 


Taylor,    Jeremy,    his    prayer 

for  debtors,  75 
Teetotallers,     persecution     of 

licence     holders     by,     259  ; 

their    ideals,    260 ;     Charles 

Kingsley's   views   of,    264 — 

266,  270 
Telephone,    legal    position    of, 

82,83 
Tennant,      Mrs.,      report      on 

divorce,  136 


Thackeray,  on  prisoner  giving 
evidence,  193 

Torrens  Act,  1868.  .241 

Treasury  fees  on  Administra- 
tion Orders,  exorbitancy  of, 
121 — 124,  298 

Twelve  Tables,  The,  32 

Tyburn,  7,  15,  16 


Vinogradoff,  Professor,  84 


Warrington,  Harry,  im- 
prisonment for  debt,  45,  46 

Webb,  Mrs.  Sidney,  her  report 
on  poor  law,  280 

Weston,  Richard,  trial  of,  n, 
12 

Whipping,  punishment  of,  6 — 
9,  209 — 212 

Witchcraft,  100 

Workhouses,  271 — 284.  And 
see  Poor  Law. 

Workmen's  compensation,  76 
— 105  ;  history  of  the  law, 
of,  76 — 84  ;  employers  lia- 
bility, 86  ;  in  Court  of 
Appeal,  90 — 93  ;  in  America, 
94,  103  ;  162,  286,  and 
conciliation,  298 

Wyrley,  cattle  maiming  at,  219 


York,      Archbishop      of,      on 
divorce,  136,  137 


BFADr.URV,    ACKEW      &    LO.    l.D   ,    PflNTERS,    LONDON    AND   TONUriDGE. 


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